Property

September 5, 2017

When Does The One-Year Peremptory Period For Fraud In Connection With Real Estate Transaction Begin To Run?

house-1188265-1024x683 In Louisiana, a victim of fraud can recover actual damages resulting from the fraud, treble damages up to three times the amount of actual damages, and reasonable attorneys fees and costs. However, this potentially large recovery is barred by a peremptory period if the defrauded party doesn’t bring the lawsuit within one year. In certain cases, the issue of when exactly this one-year timer starts can be dispositive. The following case dealing with two real estate transactions illustrates the point.

Here, Amanda Adcock owned a home in West Monroe, Louisiana. Ms. Adcock lost her job and was unable to make her monthly mortgage payments to JP Morgan Chase (“Chase”). As a result, Chase initiated foreclosure proceedings against Ms. Adcock’s home in August 2011. Shortly afterward, Ms. Adcock filed for Chapter 13 bankruptcy, which halts any foreclosure already in process. Ms. Adcock then listed the home for sale as part of the bankruptcy estate. At the time of the bankruptcy, Ms. Adcock owed Chase $195,842.29.

In January 2012, Shane Wooten, a real estate agent, contacted Ms. Adcock and informed her that her home could be taken out of the bankruptcy estate and listed as a short sale. Three months later, Ms. Adcock wrote a letter to Chase to begin the short sale process and Chase cooperated (bank approval is required before a short sale can be completed). In June 2012, Tracy Ginn, the spouse of one of the real estate agents who worked for the same realty company as Mr. Wooten, offered to buy Ms. Adcock’s home for $190,000.

September 4, 2017

Wrongful Demolition in Town of Rayville Garners Less In Damages Than One Might Think

by Berniard Law Firm

old-bulldozer-1441562-1024x768 Wrongful demolition is a cause of action rarely invoked because the events giving rise to such an action rarely occur. Essentially, a claim for wrongful demolition arises when a plaintiff’s property was mistakenly or wrongfully demolished. In the following case, Morgan Moss found himself in the unique position of asserting such a claim against the town of Rayville, Louisiana. See La. C.C. art. 2315; see also Hornsby v. Bayou Jack Logging, 902 So.2d 361 (La. 2005).

One morning, while in his home Mr. Moss heard some strange noises coming from across the street. When he walked out of his house to inspect the source of the noise he discovered that his storage property across the street was being demolished by town workers. The town had somehow mistaken Mr. Moss’s property for another property that was scheduled to be demolished. Significantly, Mr. Moss filmed the town workmen but did not try to stop the demolition.

Mr. Moss presented his case to the Trial Court where he won a judgment for only $5000 for the loss of his property. Unsatisfied, Mr. Moss appealed to the Louisiana Second Circuit Court of Appeal hoping to recover more. Any good attorney knows to speak to judges with deference and respect. Along those lines, it’s unwise to make frivolous arguments or to embellish facts.

August 26, 2017

Supreme Court of Louisiana Says Cameron Parish Business Owner Not Personally Liable

by Berniard Law Firm

drag-line-equipment-taking-a-swim-1219894-1024x659 A primary concern that all business owners have is how to insulate themselves from any improper actions that their business engages in. Without some mechanism to separate the actions of the business from the business owner, a business owner would be personally liable for the business’s actions and could face legal claims against him or her for actions that the business engaged in. States, recognizing this problem, created many forms of corporate structures with varying levels of liability protection. Examples of such corporate structures are limited liability companies (L.L.C.), professional corporations (P.C.), and C corporations. While these, and other types of corporate structures, provide business owners with insulation from liability, business owners could still be personally liable for their company’s actions if those actions fall under a narrow set of circumstances. Recently, the Louisiana Supreme Court addressed whether one of these narrow circumstances occurred when determining whether an owner of a home construction company was personally liable for the actions of the company.

Jennifer Nunez contracted with Pinnacle Homes, L.L.C. (Pinnacle) to construct a home in Cameron Parish. Allen Lenard, a state licensed construction contractor and owner of Pinnacle, entered into a contract with Ms. Nunez on behalf of Pinnacle. The contract stated that the construction of the home would comply with all applicable national, state, and local building codes and laws. The Cameron Parish permitting board required that Ms. Nunez’s new home be ten feet above sea level. Not only would Ms. Nunez’s home need to be ten feet above sea level to comply with the permitting board, but the home would need to be ten feet above sea level for Ms. Nunez to obtain flood insurance.

After Pinnacle completed construction, Ms. Nunez ordered an elevation certificate so that she could obtain flood insurance. Through the certification process, Ms. Nunez was informed that her house did not meet the ten-foot base flood elevation as the permit required. Ms. Nunez’s home only stood at an elevation of approximately 8 and one-half feet. The house was fully constructed on a concrete slab and it was determined that it would cost approximately $201,600 to raise the base to the required ten-foot elevation.

August 22, 2017

St. John the Baptist Parish Enjoys Absolute Immunity from Residents’ Class Action Lawsuit for Damages Sustained in Hurricane Isaac

by Berniard Law Firm

more-large-yard-ornaments-1560393-1024x683 The government owes a duty to its citizens to serve their best interests. But what happens when the government breaches that duty? Can we, as citizens, sue our government for perceived wrongs it has committed? Can we recover damages? This is an especially critical issue when it comes to a government’s responsibility to its citizens in times of natural disasters, as illustrated by the following case.

On August 26, 2012, in anticipation of Hurricane Isaac’s arrival, both Governor Bobby Jindal and St. John the Baptist Parish (“Parish”) President, Natalie Robottom, declared a state of emergency. Hurricane Isaac hit three days later. On October 26, 2012, sixty Parish residents (“Residents”), who suffered flood damages as a result of Hurricane Isaac, filed a class action against the Parish. The Residents alleged that the Parish was negligent and at fault for its failure to warn of the probability of flooding, its failure to declare a mandatory evacuation, and its failure to take steps to lessen the damage to the Residents.

The Parish filed an exception of no cause of action on June 24, 2014. An exception of no cause of action raises the question of whether the law provides a remedy to anyone under the facts alleged in the petition. Specifically, the Parish claimed it was entitled to immunity from the Residents’ claims under the Louisiana Homeland Security and Emergency Assistance and Disaster Act (“Act”). The Fortieth Judicial District Court Parish of St. John the Baptist held that the Parish was immune to the Residents’ claims under the Act. Accordingly, the Trial Court granted the Parish’s exception of no cause of action and dismissed the Residents’ claims. The Residents attempted to amend their petition for damages to try and overcome the immunity defense but the Trial Court denied this request. The Residents filed an appeal, arguing that the Trial Court erred in dismissing their claims based on the Parish’s immunity.

July 26, 2017

St. Landry Parish Landowners Permitted to Prohibit Neighbors Use of Land Despite Neighbors’ Claim of Entitled Use

by Berniard Law Firm

landcape-1394201-1024x768 Desiring to be friendly, you may allow your neighbors to use a portion of your land in order to make their lives a little easier. You allow your neighbors to continue to use your land for some time, but now you want privacy on your property. At this point you would most likely ask your neighbor to stop using your land, but what do you do when they refuse? What do you do when your new neighbor claims ownership of the portion of land that you allowed them to use? Defending ownership rights against presumptuous neighbors was a recent issue in a case out of St. Landry Parish.

In 1989, Emery and Hazel Scrantz divorced. Prior to Mr. and Mrs. Scrantz’s divorce, they owned a single 119-acre tract of land. After the divorce, a court ordered the land be separated into three separate tracts. Emery received two tracts, a 20-acre tract, and an 80-acre tract. Hazel received one 19-acre tract. Hazel’s 19-acre tract was situated in-between both of Emery’s tracts of land. In order to allow Emery access to both of his tracts, he was granted a servitude (i.e. easement) to run his cattle across Hazel’s land. On July 7, 1993, Emery sold his 80-acre tract to his brother, the Plaintiff, Joseph Scrantz. Emery maintained ownership of his 20-acre tract. Emery and Joseph shared their land to raise cattle, and would often use the passage crossing over Hazel’s land to transfer the cattle between the two tracts.

In 1994, Hazel sold her 19-acre tract to the Defendants, Marvin and Dorothy Smith. When the Smiths first purchased the tract of land from Hazel they were unaware of the servitude. In 2013 Emery died, and his daughter, Tina Scrantz, inherited the 20-acre tract of land. At some point before his death, Emery and Marvin Smith had a disagreement concerning the use of the passage. The disagreement was settled when Marvin agreed to let Emery’s cattle pass through his tract to access the land owned by the Scrantz brothers. Marvin Smith also allowed Joseph and Emery to build a fence around the servitude. After Emery’s death, Joseph continued running cattle across the passage to the 20-acre tract now owned by Tina.

July 18, 2017

St. Bernard Parish Government Demolishes Man’s Rental Property Without Notice

by Berniard Law Firm

demolition-1575129-1024x666 Imagine that you own several rental properties, and one day some of the properties get severely damaged by a hurricane. You slowly try to repair the damaged properties, but your local government decides to demolish it, without notifying you first. That is what happened to a St. Bernard Parish, Louisiana man named Glenn Sandrock.

Mr. Sandrock owned approximately forty rental properties in St. Bernard Parish. One of those properties was demolished by St. Bernard Parish Government (“SBPG”). Many properties within the Parish were damaged by Hurricane Katrina. In an effort to rebuild and restore the Parish, the St. Bernard Parish Council passed multiple ordinances which made it mandatory for owners to repair their hurricane-damaged properties. Ordinance #634-12-05 basically allowed SBPG to access private property to clean debris or even to demolish the property if the property didn’t meet reconstruction/maintenance specifications established by SBPG.

Mr. Sandrock received a condemnation notice during December 2006 which declared his property as a public health and safety hazard. The notice also stated that his property was scheduled for demolition. Mr. Sandrock applied for and was granted a demolition appeal in January 2007 which allowed Mr. Sandrock seven days to clean and properly secure the property. Ten days after Mr. Sandrock was given the appeal, SBPG sent an employee to the property to inspect, but without notifying Mr. Sandrock. The SPBG employee inspected the property and found that the property was not up to the standards required by the demolition appeal. Because Mr. Sandrock’s property was still covered with debris and had not been properly secured, SBPG revoked the appeal but did not notify Mr. Sandrock of the revocation.

July 14, 2017

Strict Construction of Statute Flattens Timber Theft Case Out of DeSoto Parish

by Berniard Law Firm

forest-2-1550924-1-1024x768 Imagine you owned acres of lush and valuable trees. Then imagine that one day, you discover your land to be completely barren, the valuable trees almost completely removed. Even worse, you have no real, viable recourse against the thieves who cut down and hauled off the trees because of a very strict, literal, narrow interpretation of the terms of a statute. Instead, you are left with stripped land and a possibly uncollectable judgment.

This is what happened to the Lowman Family in DeSoto Parish. The Lowmans, in this case, are comprised of a sibling group who owned about twenty acres of land once populated by timber bearing trees. Upon discovering the trees missing, the Lowmans filed a lawsuit against six defendants composed of two groups: three individuals and three companies. The individuals, Ricky Whitaker (“Ricky”), Michael Whitaker(“Michael”) and Jerry Whitaker (“Jerry”), are siblings. The companies, Jerry Whitaker Timber Contractors, L.L.C. (“JWTC”), Evergreen Timber

Corporation (“Evergreen”) and Brady Timber Corporation (“Brady”), were allegedly directing the actions of the Whitaker siblings in an employer type manner which, if true, would render the company defendants vicariously liable for the Whitakers’ actions.

June 20, 2017

Failure to Pay Taxes Results in Litigation Headache for New Orleans Property Owner

by Berniard Law Firm

tax-1501475-1024x768 In Louisiana, a failure to pay your property taxes can result in your property being subject to a tax sale. This can cause a tremendous headache. Though the Louisiana Constitution and Revised Statutes provide that the government’s right to proceed to a tax sale expires three years after the last day of the year in which the taxes were due, one New Orleans property owner was sent a tax bill including unpaid taxes which seemingly should have been expired.

In 2006, Kathleen Bilbe purchased a piece of real estate located at 1722 Lark Street in New Orleans. The property was subject to ad velorem taxes. Ms. Bilbe failed to pay her property taxes in 2007, which accumulated interest, penalties, and costs. The New Orleans Department of Finance sent Ms. Bilbe a tax bill for 2007 reflecting the real estate taxes she owed for 2010, neighborhood fees for 2010, and the unpaid taxes from 2007. Ms. Bilbe made a partial payment towards the unpaid 2007 taxes in February 2010 but the entire balance of the 2010 bill remained.

The Department of Finance sent a notice to Ms. Bilbe that her property could be subject to a tax sale due to her unpaid taxes in July of 2011. That same month she paid the entire balance and her property was spared from the tax sale. Though the Louisiana Revised Statutes allow an opportunity to dispute the amount assessed by the tax collector, Ms. Bilbe did not indicate that she was making the payment in protest. La. R.S. 47:2314.

June 19, 2017

Louisiana Court Upholds Jury’s Finding of No Causation Despite Uncontroverted Expert Testimony

by Berniard Law Firm

trailerpark-1-1559039-1024x820 In any personal injury lawsuit, it is absolutely critical that the plaintiff documents his or her injuries and gather evidence in support of legal claims. In addition to establishing that the defendant breached a duty of care, personal injury plaintiffs must also prove – through medical testimony and documentation – that it was more probable than not that the accident at issue caused their injuries. See Maranto v. Goodyear Tire & Rubber Co., 650 So.2d 757 (La. 1995). This is particularly complicated when the plaintiff is already receiving care for preexisting injuries, as the law holds that defendants are not liable for damages caused by separate, independent, or intervening causes or injury. A recent case of the Louisiana First Circuit Court of Appeal is revealing. In this case, the Court of Appeal upheld a jury’s finding of no causation despite unconverted testimony by two expert witnesses.

On July 18, 2011, Wendy Richardson was returning to her home in Powers Trailer Park in Ascension Parish, Louisiana when her vehicle’s right rear tire fell into a hole. The hole developed suddenly in the gravel lining the entrance to the trailer park from Airline Highway. Ms. Richardson filed a lawsuit against the owner of the trailer park, Homewood Holdings, L.L.C. and its insurer, Scottsdale Insurance Company. Ms. Richardson argued that the hole caused her vehicle to unexpectedly stop, causing her serious injuries that necessitated undergoing spinal surgery.

At trial, Ms. Richardson presented the testimony of two treating physicians in addition to her own testimony. Ms. Richardson testified that she did not immediately seek medical attention for her injuries because she was already being administered a narcotic for serious injuries suffered in a domestic violence incident, and her contract prohibited her from receiving medication from any other source. She waited until her next scheduled appointment with her pain management specialist, Dr. Thomas Cockerham.

June 11, 2017

No Abuse of Discretion City Officials’ Denial of Plan to Build Dollar General in Shreveport

by Berniard Law Firm

shopping-center-1507250-1024x768 Even if a property is zoned for commercial purposes, a city may discretionarily deny a business from buying and developing that property if the city determines it is against the public interest. The city of Shreveport, Louisiana was challenged when they denied a Dollar General’s site plan to develop a commercially zoned, “use by right” 1.13-acre lot. While Dollar General’s developer, GBT Realty Corporation, petitioned the trial and appellate courts for damages resulting from loss of a business opportunity, the courts ruled that the city was immune from tort liability when a city exercises its discretion in the use of its commercially zoned properties.

In May 2012, GBT appeared before the Shreveport Metropolitan Planning Commission (MPC) at a public hearing to develop a Dollar General store. The MPC expressed concerns relating to the proximity of a Family Dollar store across the street from the proposed Dollar General site as well as concerns about the appearance and landscaping of the proposed Dollar General store. A month later, GBT presented an updated plan with changes made to the store’s landscaping and facade at an MPC public hearing. Nonetheless, amid concerns by the public as well as the MPC, the board unanimously vetoed Dollar General’s plan citing that the plan did not comply with proposed zoning changes for the city’s “2020 Master Plan” and that the site in question was too small to accommodate Dollar General’s store plan. In response, GBT filed an action before the First Judicial District Court to approve the first site plan. The District Court approved the plan and reversed the MPC’S decision. In April 2013, GBT filed a lawsuit against the MPC and city of Shreveport alleging a tort claim for loss of business opportunity due to the delay in approval has caused the plan to fall apart.

The trial court concluded that the city was protected from liability from exercising its discretion in disapproving the site plan. Louisiana statute protects public bodies, including cities and its officers, when they perform discretionary acts that are within the scope of their governmental responsibilities. La. R.S. 9:2798.1. The trial court recognized that the city exercised its discretion in denying the Dollar General site plan based on issues of impact to the nearby property, traffic, and other public safety concerns. The trial court also concluded that the plan fell apart because of disagreements between GBT and Dollar General rather than falling apart due to the delay caused by the MPC denial and the district court’s approval. Accordingly, the trial court ruled in favor of the city of Shreveport.