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law-offices-1477311-1-1024x743The 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.

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construction-workers-1215154-1024x738Construction contracts can be confusing because contractors often use many subcontractors to carry out the terms of the contract. This is why when a dispute arises those involved in construction contracts need the best lawyer possible to untangle contractual provisions especially in the context of payment to subcontractors.

The Dryades Young Men’s Christian Association and Ellis Construction, Inc. entered into a contract for a project known as the Dryades YMCA Natatorium and Wellness Center in New Orleans, Louisiana. Ellis then entered into a subcontract with Rotolo Consultants, Inc. (RCI). RCI formed a contract with Tymeless; Tymeless was a subcontractor of the first subcontractor, RCI. After performing the terms of its subcontract, Tymeless invoiced RCI. Although RCI made a partial payment, RCI did not pay Tymeless completely. In its lawsuit, Tymeless claimed that RCI was liable to it for the full amount of the contract, plus interest, attorney’s fees, and costs. In response to Tymeless’ lawsuit, RCI filed a dilatory exception of prematurity, based on the payment provision in its subcontract with Tymeless: “Payments are to be made as follows: 90% of Sub-Contractorís approved invoices or pay request will be paid subject to the conditions following, after payment by the Owner for Sub-Contractor’s work. Retention of 10% will be released upon satisfactory completion of this contract and release of final payment by the Owner.” RCI argued that because of this provision, “unless and until” Ellis paid RCI, RCI could not pay Tymeless the amount Tymeless wanted. The district court in New Orleans found that the contract had a “pay-if-paid clause” and dismissed the lawsuit filed by Tymeless.

On appeal, the issue was whether the provision in the subcontract was a “pay-if-paid” clause or a “pay-when-paid” clause. Most courts now treat pay-when-paid clauses differently than pay-if-paid provisions. A “pay-when-paid” clause creates a window of time in which the general contract has to pay the subcontractor. The general contractor has to pay the subcontractor within a reasonable time, even if the general contractor does not receive payment from the owner. A “pay-when-paid” clause can be interpreted in two ways: setting a condition before payment, or fixing a specific point in time at which payment is due. Most states hold the view that “pay-when-paid” clauses function as time mechanisms, and not as a condition precedent. The more restrictive “pay-if-paid” clause indicates that the general contractor is only required to pay the subcontractor if and to the extent that the general contractor has received payment from the owner for the subcontractor’s work. In other words, the risk of nonpayment is transferred from the general contractor to the subcontractor. Louisiana law aligns with the national viewpoint of a “pay-when-paid” clause; under Louisiana law, such a payment clause sets a reasonable time for payment. Southern States Masonry, Inc v. J.A. Jones Constr. Co., 507 So. 2d 198 (La. 1987). On the other hand, “pay-if-paid” clauses create a condition precedent to the subcontractor’s payment. Imagine Constr., Inc. v. Centex Landis Constr. Co., Inc., 707 So. 2d 500 (La. App. 1998).

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freedom-of-speech-1058617-1024x900When 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.

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anaesthetic-machine-1468043-951x1024Medical malpractice lawsuits can be extremely tough cases involving complex areas of medicine.  The best lawyers involved in medical malpractice lawsuits know that great experts are necessary to help prove their case.  The following lawsuit out of Jefferson Parish shows how a medical malpractice case can be effected if the right experts are not chosen to advocate on the Plaintiff’s behalf.

James Pertuit suffered a traumatic brain injury in an accident on his farm on November 6, 2007. He was admitted to East Jefferson General  Hosptial and placed under the care of  a neurosurgeon. Approximately two weeks later, Mr. Peruit’s breathing tube was removed. After performing a neurological assessment that same evening, Mr. Pertuit’s doctor removed the  frontoventriculostomy tube from Mr. Peruit’s brain. After Mr. Peruit’s condition deteriorated, that same doctor placed a  new left frontoventriculostomny tube in Mr. Pertuit’s brain, but the patient’s brain damage was irreversible and unfortunately he died one week later.

Mr. Pertuit’s wife filed a claim of professional medical negligence against the doctor and East Jefferson General Hospital, claiming that they failed to meet the standard of care for her husband.  See La. R.S. 9:2794(A). Mrs. Pertuit, in order to establish her claim, employed as an expert witness, Dr. Joan Wojak, who is the director of neuroradiology at Our Lady of Lourdes Regional Medical Center in Lafayette and an interventional neuroradiologist.

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fireman-s-playground-1496789-1024x768Playgrounds bring great joy to young children.  Countless hours are spent sliding down slides, swinging on swings and traversing monkey bars throughout the state of Louisiana.  While it might come as news to some, playground equipment has certain set standards for what age range is appropriate to play on the equipment.  In a recent case involving a Baptist Church Aftercare program in Jefferson Parish these standards were discussed when unfortunately a young girl broke her arm while playing on their playground.

In September 2010, a 19-month old girl fell and broke her arm playing on a playset while in an aftercare program at Riverside Baptist Church. The playset was only meant for children 5 years old or older.  The parents of that child felt that Riverside failed in providing age appropriate equipment and therefore sued Riverside for damages in a negligence claim.

Personal injury can arise in many different scenarios, ranging from automobile accidents to medical malpractice cases. A common occurrence in these claims include the theory of negligence. The legal foundation for a negligence (failure to use reasonable care) theory in Louisiana involves five elements: (1) the defendant (the party being sued) had a duty to exercise reasonable standard of care; (2) the defendant failed to exercise this duty; (3) because the defendant’s lack of exercising this duty properly caused the injury; (4) the defendant’s ‘substandard’ care was within the scope of liability (i.e. even if the cause, were they legally liable for the cause); (5) did actual damages (injury or economic loss) occur. La. C.C. art. 2315. 

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Disputes between parties over a contract happen in the real world.  Even large sophisticated companies with legal departments and retained law firms have difficulty making air tight contracts that flow smoothly and are dispute free.

A company named 1100 South Jefferson Davis Parkway, LLC (South) was selling a property in New Orleans, Louisiana.  On November 28, 2008 South entered into an Agreement to Purchase the property (the Agreement) with Richard H. Williams (Williams) for $875,000.

The Agreement stipulated Williams had 30 days from the November 28, 2008 acceptance of South’s offer to inspect the property.  Williams was free to hire his own inspectors during this period, but was required to furnish the inspection reports on the property to South.  On December 18, 2008, Williams asked for an extension of an additional 30 days to inspect the property. South agreed to the extension and a new deadline for the completed inspections was set for January 19, 2009.

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To many the ownership of a home is a major part of the American dream. Many who have bought a home in the past have been enticed by the possibility of turning basic rent payments into eventual ownership of a home.  If you do enter into this type of agreement with a landlord make sure the contract is clear and you uphold your obligations.

In September 2013, Adrienne Brown and Roger Brown, Jr. responded to an advertisement stating a property in Chalmette, Louisiana was available for rent or rent-own.  On September 26, 2013 the Browns entered into a contract with the owner, Ellis Keys for a rent-to-own agreement. The property was to be sold in the amount of $100,000 at $750 per month until “paid in full.” The Browns were also required to maintain the property and forward mail to Mr. Ellis.

The relationship soured quickly. In early April 2014 Mr. Keys began the process of evicting the Brown for nonpayment of rent, nonpayment of contractually required late fees and not forwarding mail addressed to him which caused him to lose money.  After Mr. Keys notified them, the Browns had five days to vacate the property for failing to pay rent under La. C.C.P. art. 4701.

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medical-1240480-718x1024Medical malpractice lawsuits are known to be some of the most complicated, technical cases for injured parties. The average person does not have enough technical knowledge to infer negligence from a medical act or result. Because of this, many plaintiffs have to rely on expert testimony to explain nuanced details of the case and, ultimately, prove their case.

In Louisiana, for a plaintiff to recover damages in a medical malpractice lawsuit, they must prove that (1) there was a standard of care required for the practitioner, (2) the practitioner breached the standard of care, and (3) there was a causal connection between the breach and in the injury. Problems arise for injured parties when their expert testimony is unable to establish these elements and they are consequently subject to summary judgment; this is what happened to the Gonzaleses in their case against the Ochsner Clinic Foundation.

On November 7, 2006, Steven Gonzales saw his doctor for his diabetes at the Ochsner Clinic in Jefferson Parish Louisiana. In addition to the regular diabetes consultation, Mr. Gonzales brought a small bump on his elbow to the doctor’s attention and she diagnosed it as a cyst. The same events occurred again at his December 8, 2006 appointment with the doctor. After growing to the size of a quarter and interfering with his ability to use his arm, Mr. Gonzales requested that his doctor remove it; this occurred on 28 December 2006. After the growth was sent to a lab, Mr. Gonzales was informed that it was a stage II NO tumor of Merkel cell carcinoma, meaning that cancer was localized and had not spread to other areas of his body yet. Mr. Gonzales later had surgery to remove the tissue surrounding the tumor and radiation.

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electric-shock-hazard-1310056-1024x683On the afternoon of April 13, 2011, Officer J.M. Bassett of the Shreveport Police Department heard loud music coming from a motorcycle parked at 251 E. 72nd in Shreveport Louisiana. When Officer Bassett attempted to make contact with the man, Jessie Scott, Scott became hostile. As the situation escalated, Officer Bassett employed his Taser stun gun and handcuffed Mr. Scott, placing him into custody and transporting Mr. Scott to the police station. At the station, Mr. Scott complained of chest pain and Mr. Scott was taken to the Louisiana State University Health Sciences Center, where it was determined that Mr. Scott was having a heart attack.

Mr. Scott and his wife later filed a lawsuit against the City of Shreveport for the tasing and subsequent heart attack which they alleged was directly caused by the tasing event.  After receiving the lawsuit the City of Shreveport filed a motion for summary judgment in which they argued the Scotts failed to produce any medical evidence showing a causal link between Mr. Scott being tased and his heart attack later that day.  The district court agreed with the City of Shreveport and dismissed the Scott’s case.  They then appealed that ruling to the Second Circuit Appellate Court of Louisiana.

The Appellate Court agreed with the District Court of Caddo that summary judgment in favor of  the City dismissing the allegations brought by the Scotts was correct. Summary judgment is proper when there is no genuine issue of material fact for all or part of the relief sought by a litigant. See Samaha v. Rau, 2007-1726 (La. 02/26/08), 977 So. 2d 880. Here, the Scotts are required to provide proof that there is a causal link between the tasing and Mr. Scott’s heart attack, but the Scotts failed to produce such evidence.

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old-rusty-ladder-1426340-770x1024In a recent personal injury case, the plaintiff, Angela Lawrence, from Ouachita, Louisiana, sued her 76 year old grandmother Dorothy Dell Sanders and Allstate Insurance Company, for injuries sustained when Ms. Lawrence fell from the top of a ladder after cleaning her grandmother’s roof. Ms. Lawrence was no stranger to the task her grandmother asked her to complete. From the age of 15 until the time of the accident, Ms. Lawrence had performed the task of going up a ladder and cleaning her grandmother’s roof approximately 20-24 times. Although on the day of the accident, the circumstances changed. The usual ladder that Ms. Lawrence normally used was stolen, so Ms. Lawrence elected to use an older, shorter ladder than usual. Ms. Lawrence did not tell her grandmother that she did not want to use this replacement ladder and elected to clean the roof even though her grandmother, Ms. Sanders, was not insistent that the job be completed immediately.

After her fall Ms. Lawrence filed a lawsuit against her grandmother and her homeowners’s insurance company.  In that lawsuit Ms. Lawrence claimed that the ladder was defective and that her grandmother, Ms. Sanders, was negligent in letting Ms. Lawrence use a defective ladder. As the claimant in the lawsuit, Ms. Lawrence not only needed to allege the injuries caused to her by the defendants, she must also prove her injuries were the fault of the defendants. Ms. Lawrence’s only evidence was her own deposition, her statement to the court about what happened.

Ms. Lawrence alleged that she was injured due to the dangerous and defective condition of the ladder, which caused her to fall and sustain injuries to her wrist, neck and back.  Ms. Lawrence testified that she thought the ladder fell by “someone not holding it” but did not ask for her aunt or grandmother to hold the ladder for her. After the accident, AllState conducted an investigation and determined that the ladder was not damaged. As it stood, it was Ms. Lawrence’s word that the ladder was defective against AllState’s investigation, and Ms. Lawrence’s words alone were not enough for the case to withstand a filing for a summary judgment by the Defendants.  

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