Real Estate

November 21, 2013

New Orleans Land Developer Wins and Loses On Appeal

A degree of legal closure has settled following a failed New Orleans housing project and years of litigation.

The U.S. Court of Appeals for the Fifth Circuit affirmed the district court’s ruling in a dispute between the developer, Levy Gardens Partners, and its title insurance company, Commonwealth Land Title Insurance Company. The U.S. District Court for the Eastern District of Louisiana ordered Commonwealth to pay Levy Gardens $605,000 under their title insurance policy with Commonwealth. Levy Gardens sought a greater recovery and filed an appeal. Commonwealth sought to have the judgment nullified, claiming Levy Gardens was not entitled to any money under the title insurance policy.

Commonwealth agreed to cover a loss in value of the property’s title. The insurance policy contained a zoning endorsement which committed Commonwealth to insure against the risk that the land was misclassified as a multi-family housing zone. An insurance endorsement is an amendment to a policy that either adds or limits coverage. This endorsement expanded coverage to account for zoning errors. The policy in this case also required Levy Gardens to comply with any conditions, restrictions, or requirements in the zoning ordinances. The policy limit was more than $18 million.

November 17, 2013

Public Entities Afforded Special Treatment by the Law in Injury Cases

by Berniard Law Firm

Public entities, such as the food bank in the City of Kenner, get special treatment when it comes to personal injuries. A plaintiff must prove that a hazard was not open and obvious in order to collect damages for their injuries. The thing must also pose an unreasonable risk of harm. However, if there is an unreasonably dangerous condition, the owner of the premises is supposed to either correct the danger or post some kind of warning for people passing by or using the premises.

Louisiana courts use a four-part test to determine whether a risk is unreasonable. First, the court will consider the utility of the thing, or its overall usefulness. Then, the court considers the likelihood and degree of the harm. Part of that determination considers the openness and obviousness of the condition. That is, they will attempt to consider how likely it is that someone will not notice the condition, and if they did not notice the condition, how badly they will be injured. Third, the court considers the cost of preventing the harm, or how much it would cost to fix the condition. Finally, the court will address how dangerous the plaintiff’s actions were in the first place. For example, if Plaintiff trips on a crack in the sidewalk, but he was running with scissors on public property, then the court will take that into consideration when determining if the crack in the sidewalk is related to his stab wound.

If Plaintiff satisfies all of these prongs, then the public entity will likely be to blame for the plaintiff’s injuries. The public entity faces strict liability if Plaintiff passes all four prongs. Strict liability is a very difficult standard for the public entity to face because there are no degrees of fault. It is either the city’s (or other pubic entity’s fault) or it is not. If Plaintiff meets all four prongs, fault has pretty much already been determined.

November 15, 2013

Liability of Establishment for Attack Outside Examined in Louisiana Case

by Berniard Law Firm

There is no general duty for a business to protect customers from third party attackers. If someone attacks you outside of a store, for example, the store is usually not responsible for the injuries or damages that occur because of that attack. The Third Circuit Court of Appeal for the State of Louisiana explained this concept in a case that originated in Alexandria City Court.

In June 2009, a woman and her mother were attending a bingo fundraising event for the local school football team. They arrived a little late and were attacked outside of the building where the bingo was being held. The assailant took the women’s purses and attempted to get away in the women’s car. The car headed toward a group of pedestrians at high speed in its getaway attempt.

Fortunately, the security guard rushed outside when he heard what was going on. He shot at the wheels of the vehicle, forcing it to stop before it reached the group of pedestrians. He arrested the attacker and sent him to jail. One of the women, however, injured her leg when the attacker struck it with the car as he was trying to escape.

November 4, 2013

The Limited Nature of Appeals Court Highlighted in New Orleans Case

by Berniard Law Firm

Appeals courts are unique in two major respects: evidentiary requirements and standards of review. When cases are appealed, the evidentiary requirements are different at the appeals level than they were at the trial court level. For example, often the appeals court’s factual inquiry is limited to “the record,” or the facts as explained by the trial court. The appeals court cannot look beyond what is in the record or what is argued in front of them, even if they would like additional facts. Occasionally, the appeals court can look to evidence that is introduced by the parties, but many times the standard of review requires that the appeals court cannot look at evidence at all.

In addition, the standard of review depends on the type of legal question presented. The two major standards of review in Louisiana are manifest error and de novo review. In manifest error review, the appeals court simply determines whether the lower court’s outcome is probable, or lacks manifest error. They consider the facts in the record and determine if the outcome was probable given the facts. The trial court has a great deal of deference because they access the credibility of the witnesses and deal with complex evidentiary rules. The second type of review, de novo review, does not rely on the lower court. Instead, the appeals court can consider the evidence in the record as if it were a new trial. There is no need to consider what the lower court did with the information because the appeals court makes its own independent decisions. Often, however, the appeals court is still limited to the evidence in their record.

A recent case arising from the First City Court of New Orleans to the Court of Appeals for the Fourth Circuit for the State of Louisiana outlines these concepts. In that case, an individual contracted with a building contractor to make improvements on his house. The individual argued that the contractor performed poorly, and therefore did not fulfill his half of the contract, even though the contractor had already been paid. The lower court granted an exception of prematurity, which, in this case, meant that the party brought the case too early because there was a stipulation in the contract that required mediation before the parties could bring the case to court. Under the exception of prematurity, the appeals court reviews the lower court under manifest error. However, when the parties argued their case at the court of appeals, neither party put the actual contract into evidence at the appeals hearing. Since appeals courts have strict evidentiary requirements, the court could not consider what the contract actually stated. Therefore, it struck down the exception of prematurity.

October 27, 2013

5th Circuit Rules Wal-Mart Not Liable for Slip-and-Fall Caused by Leaky Roof

by Berniard Law Firm

When a hazardous condition on a merchant’s property causes a slip-and-fall accident, the victim can file suit for his or her injuries. But in Louisiana, the merchant can only be held liable for those injuries if the merchant created the danger or had actual or constructive notice of it before the accident. This law saved Wal-Mart from liability in Gray v. Wal-Mart, a recent case from the Fifth Circuit Court of Appeals.

On September 1, 2008, Hurricane Gustav made landfall near Cocodrie, Louisiana as a Category 2 storm, causing considerable casualties and damages along its track. That day, Louisiana resident Jean Gray was shopping at a Wal-Mart in Pineville. As she was pushing her cart down an aisle, she slipped in a puddle of clear liquid and fell, injuring her right knee. In an internal incident report, a Wal-Mart supervisor identified a hole in the store’s roof as the source of the puddle, an assumption he made based on his knowledge of other leaks in the roof and the heavy rain pouring down outside.

Gray and her husband sued Wal-Mart for her injuries, claiming that she slipped in a puddle of rainwater that had leaked from a hole in the store’s roof. The district court granted summary judgment in favor of Wal-Mart. The Grays appealed, and the case went to the Fifth Circuit.

October 15, 2013

Landlord Out of Pocket $14k Due to the Negligence of His Repairman

by Berniard Law Firm

Under Louisiana law, if the owner of a defective ‘thing’ knew, or in the exercise of reasonable care, should have known of the ruin, vice, or defect of the ‘thing,’ if the damage could have been prevented by exercising reasonable care, and if the owner failed to exercise such reasonable care, he is liable for the unintentional harm caused by his negligence. Negligence is a failure to exercise the care that a reasonably prudent person would exercise in similar circumstances.

In a recent case, sheetrock from the kitchen ceiling of a rental house owned by John F. Luck in Shreveport, LA, struck two visitors, knocking them to the floor. The injured pair brought the suit alleging that the negligent home owner, Luck, should have been aware of the condition of the ceiling in the rental home. The victims argued that since Luck should have been aware of the decrepit ceiling, he could have fixed the ceiling, thereby preventing the injuries now sustained by the pair. The court of appeals ultimately affirmed the decision of the district court, holding Luck liable for the personal injuries through a negligence theory of vicarious liability known as respondeat superior.

Respondeat superior is a legal doctrine which holds the employer liable for the actions of his employees, when performed within the course of their employment. In this case, Luck’s maintenance supervisor, Rodney Fleckenstein, worked for Luck as a repairman for almost five years and eight months. Fleckenstein had gone into the rental home on three separate occasions prior to the collapsing sheetrock incident, to repair and replace various utilities within the home. Both the district court and court of appeals found that Luck should have known of the disrepair of the kitchen ceiling through Fleckenstein’s casual observation of the home when he went in to do his repairs.

October 1, 2013

Dispute Over Responsibility in Accident at Apartment Complex

by Berniard Law Firm

Every first year law student learns about negligence in their tort law class. Negligence claims are some of the most common claims brought in civil court. In order for a defendant to be found liable for negligence, it must be shown that the defendant owed the plaintiff a duty of care, which can also be refered to as a duty to protect. This means that the defendant has to have some level of responsibility for protecting the plaintiff from harm. If the defendant has no duty of care, then they cannot be held liable for negligence. The plaintiff has to prove that the defendant owed them that duty of care.

Sometimes it is easy to determine whether or not a defendant owed a plaintiff a duty of care. For instance, medical malpractice suits are often refered to as professional negligence since a doctor or nurse owes their patient a duty of care regarding their medical treatments. Likewise a lawyer owes his client a duty of care regarding their legal representation. But sometimes, a major point of contention in a lawsuit is whether such a duty of care exists at all. The case of Ponceti v. First Lake Properties shows what happens when a plaintiff cannot show that the defendant owed them a duty of care.

Ms. Ponceti and her daughter, Kaitlynn, lived in an apartment complex in Mandeville owned by First Lake Properties. One day Kaitlynn was riding her scooter in the courtyard of the complex. A teenager was riding his bike in the courtyard at the same time, and lost control of his bike while popping a wheelie. He hit Kaitlynn with his bike and injured her leg.

September 17, 2013

Proper Service Essential for Successful Legal Remedy

by Berniard Law Firm

Under Louisiana law, there are very specific rules about how to properly serve someone, and one of the important aspects of service that an attorney has to get right is the timing of it. Furthermore, not only does the service have to be carried out in a timely manner, but it also has to be perfected properly.

This particular Supreme Court of Louisiana case dealt with service on a state entity, and it is important for your attorney to be aware of any differences that exist with regard to service requirements depending on who the other party is. According to the applicable state law, La. R.S. 13:850, “perfecting” a service request requires that the appropriate filing fees and transmission fees have been received by the clerk of the court and that the original signed document has been received by the clerk. All of this must be received within the proper timeframe. As stated in La. R.S. 13:850, the proper timeframe for perfection in this case is seven days.

In this case, the service request was received within the required ninety-day timeframe (ninety days since the filing of the petition), and the service request was perfected five days later once the requisite documents and fee payments were received by the clerk of the court. The question then is whether or not this counts as proper request for service: Was the request for service properly received within ninety days even though perfection of the request was outside of that ninety-day timeframe?

August 19, 2013

Appeal Dismissed Because of Late Payment, Abandonment

by Berniard Law Firm

In a recent case, Johnson v. University Medical Center in Lafayette, the Louisiana Court of Appeal for the Third Circuit reversed a trial court decision to dismiss a plaintiff’s case for abandonment due to her failure to timely pay the costs of appeal. The plaintiff in the case, Lela Johnson, originally filed a medical malpractice action against both the University Medical Center in Lafayette and the Medical Center of Louisiana in New Orleans. The case has proceeded through courts since the original petition for damages was filed on March 15, 2006.

Both defendants, whose principal places of business correspond with the last word of their names, are operated by the State of Louisiana. After a dismissal of her original suit by the Supreme Court of Louisiana due to her failure to properly notify the defendants of the action because she had requested service of process on individuals who had not been individuals who were authorized to accept such information on behalf of the defendants, Ms. Johnson’s decided to re-file the original suit in trial court. Once again, Ms. Johnson’s service of process was held insufficient by the trial court and she moved to appeal that judgment.

Service of process is a legal term of art which essentially describes the process in which plaintiffs notify defendants of a pending suit. When the plaintiff files a complaint with a court, any defendant in the case must be given notice of the pending case and an opportunity to be heard and defend themselves against the complaint. This requirement is a basic constitutional right conferred upon everyone who has been accused of some wrongdoing and it is the accuser’s responsibility to ensure that the constitutional right of the accused is protected. The importance of service of process to our legal system and the rights of defendants makes it necessary for trial courts to dismiss actions, without regard to the merits of the plaintiff’s claims, if service of process is deficient in some way or another.

August 18, 2013

Injury at Store Leads to Case Involving Past, Present, Future Injuries

by Berniard Law Firm

While Ms. Jo Anna Savant shopped at Hobby Lobby in Lafayette, two large, seventeen-pound clocks fell from a wall display and struck her on the head. She filed a suit against Hobby Lobby, alleging negligence.

Negligence is a common law tort that requires the victim to prove that the defendant had a duty to the victim, that the defendant breached that duty, that the defendant’s negligent conduct was the cause of the harm to the victim, and that the victim was, in fact, harmed. In this case, Ms. Jo Anna Savant was able to prove that Hobby Lobby was negligent. Even Hobby Lobby’s store manager testified that the manner in which the clocks were suspended on the display was unsafe.

The jury awarded Ms. Savant damages for past, present, and future physical pain and suffering, past lost wages and past medical expenses. The jury also awarded Ms. Savant’s children damages for loss of consortium because Ms. Savant was unable to spend quality time with them after she sustained her injuries. Loss of consortium is the deprivation of the benefits of a family relationship due to injuries caused by the defendant. Awards to children for loss of consortium compensate them for “loss of love and affection, society and companionship, aid and assistance, comfort and felicity.”