Louisiana Personal Injury Lawyer Blog

April 6, 2019

Ascension Parish Homeowner Wins Lawsuit Against Construction Contractors Who Refused to Complete Building

visual-construct-1545402-1024x686 When you pay for a home to be built, it can be a stressful experience. That experience becomes even more stressful when you have fully paid for the construction of that home and the contractor ceases construction without even completing half of the construction. In such a situation, it takes an excellent lawyer to figure out who exactly is at fault for the failure to complete the job and how to get the money already paid back from the contractors.

Vernon Nicholas found himself in just such a situation when he paid for a house to be built in Ascension Parish, Louisiana and the builders stopped building after completing only approximately forty percent of the full construction project. They refused to complete the project or pay Mr. Nicholas back even though he had paid for the entire house to be completed. Luckily, Mr. Nicholas obtained a good attorney and was able to obtain a judgment against both the construction company, BBT Construction, and its manager, Ahmed Trench, individually despite the fact that neither showed up for the trial. Following an appeal by Mr. Trench contesting his individual liability, the Louisiana First Circuit Court of Appeal affirmed the trial court’s ruling.

Mr. Nicholas hired BBT to build his home and Mr. Trench signed the contract as the manager. Mr. Nicholas paid $332,418 upfront to BBT, which was the entire amount of the contract for the home. He also paid an additional $3,515 upfront for design fees. BBT completed about forty percent of the house before ceasing construction and refusing to complete the rest of the job. Having no other alternative, Mr. Nicholas filed a lawsuit to recover damages, costs and other expenses based upon the breach of contract and asserting unjust enrichment in failing to pay back the money taken for the full job. The contractors even refused to fix alleged defects in the construction.

April 5, 2019

Appeal Denied in Suit Involving Mortgage Superior to Homeowners’ Association Dues

by Berniard Law Firm

home-1221234-768x1024 It can be complex to determine the superiority of claims when a piece of property has a mortgage and various judgments against it. Superiority of claims means the order in which money is to be paid to different parties who are all owed money from the property or individual who owns it. Most people want their claim to be deemed more superior than others because it can help them receive money from the property before someone else, which is especially important in cases where there is a limited fund of money.

In 2009, the Lake Villas No. II Homeowners’ Association, Inc. (“Lake Villas”) obtained a judgement of over $37,000 against Elise LaMartina, for past due monthly dues and assessments, dating back over seven years, plus attorney fees, costs, and interests. When Lake Villas attempted to collect the judgment, it found that the condo had a conventional mortgage that was superior to its judgment. The record holder of the mortgage was Elisa LaMartina’s mother, Jane.

In June 2013, Lake Villas filed a motion seeking the sheriff to seize and sell Elisa LaMartina’s condominium. It also filed an order for her mother to show cause why the mortgage should not be canceled or, alternatively, that the court to fix the amount of the mortgage. Lake Villas believed judicial determination of the existence and amount of the mortgage was necessary before there sheriff could sell the condominium. La. C.C.P. art. 2291.

April 4, 2019

Tangipahoa Winn-Dixie Employee’s Whistleblower Claims Dismissed

by Berniard Law Firm

broom-1-1206422-1024x688 Employers have a duty to provide their workers with reasonably safe working conditions. Whistleblower statutes protect employees from retaliation when they report violations of this duty. However, not every imperfection constitutes an unreasonable danger.

Brenda Causey reported that she suffered pain and soreness at her job at Winn-Dixie in Tangipahoa after operating a floor-sweeper that rode roughly and bounced her around. She completed two inspection sheets detailing the unsafe conditions. She also contacted the company’s corporate headquarters to tell them about her injury and the floor-sweeper’s unsafe condition. Causey claimed Winn-Dixie’s management blamed the problem on a tire deformity. At first, management said it would not repair the tire, but after she complained to corporate headquarters, she was informed the wheel would be replaced. Causey was terminated less than a month after this event.

Causey filed suit in the 21st Judicial District Court in Tangipahoa, Louisiana, claiming she was terminated as a result of reporting Winn-Dixie’s violation of La. R.S.23:13, which requires employers to furnish employment that is reasonably safe for its employees and do everything reasonably necessary to protect the life, health, safety and welfare of its employees. Causey sought damages and attorney fees under the Louisiana Whistleblower Statute. Winn-Dixie countered that Causey did not engage in protected activity and could not establish a case. Further, they claimed Causey was terminated for failing to place a completed inspection sheet for the defective sweeper in the proper place in compliance with company procedures.

April 3, 2019

Southeastern Louisiana Employee Successfully Sues After Boss Rejects Rescission of Resignation

by Berniard Law Firm

exit-1444097-1920x1280-1024x683 Usually when you hear the phrase “adverse employment action,” it brings to mind actions such as being demoted or fired. However, under certain circumstances, it can extend to more unique actions. This includes refusing to accept an employee’s rescission of resignation.

Tyrikia Porter worked at the Houma Terrebonne Housing Authority (“HTHA”) in Louisiana since 2001. In 2006, HTHA hired a new executive director, who made regular comments about her appearance, as well as other sexual comments. In June 2012, Porter resigned, intending for her resignation to take effect in August 2012. The Executive Director approved her request to extend her resignation by a month. During the period between when Porter offered her resignation and when she stopped working, she testified against the Executive Director, alleging sexual harassment. Other superiors urged Porter to rescind her resignation. When Porter notified HTHA that she was rescinding her resignation, the Executive Director rejected the rescission. Although Porter intended to leave when she submitted her resignation, she knew other employees had been allowed to rescind their resignations. Porter believed that her rescission was not accepted because she had testified against the Executive Director at the hearing.

Porter filed claims in the United States District Court for the Eastern District of Louisiana under Title VII and state law for retaliatory discharge and sexual harassment/hostile work environment. In order to establish a prima facie retaliation case, Porter had to show the three relevant factors outlined in the following case: See Hernandez v. Yellow Transp., Inc., 670 F.3d 644, 657 (5th Cir. 2012).Louisiana courts have generally not considered rescission as an adverse employment action in retaliation cases. However, in Burlington Northern, the U.S. Supreme Court clarified that “adverse employment actions” could extend beyond workplace or employment related retaliatory acts. In determining whether an action is an adverse employment action, courts look at the circumstances and whether the act was harmful to the point that it might “dissuade a reasonable worker from making or supporting a charge of discrimination.” See Burlington N. and Santa Fe Ry. Co. v. White, 548 U.S. 53, 67 (2006).

April 2, 2019

Baton Rouge Woman Files Lawsuit On Behalf Of Infant After Wreck

by Berniard Law Firm

a-child-1431845-1024x768 If you are at school or work and notice several people who are soaking wet and wearing rain jackets, you would not have to be a detective or even a good lawyer to confidently make the judgment that it’s raining outside. Similarly, the legal concept of summary judgment used by courts is when the undisputed facts surrounding a claim lead to a court concluding the lawsuit as a matter of law, not facts. When that concept is applied to only certain elements or portions of a case or claim, it is called partial summary judgment. Partial summary judgment and its effects were of primary importance for a Baton Rouge, Louisiana, woman’s case.

Jennifer R. Hayes was carefully driving westbound along Louisiana Highway 724 on a rainy day with her friend Mayola Casais (owner of the car) and Casais’ foster child Geneva Marie Fils in 2006. Out of nowhere an eastbound truck veered into her lane and hit head-on. As a result of the collision, Geneva sustained a fractured skull, an intracerebral hematoma, and a traumatic brain injury.

Geneva’s biological parents, John and Demitria Fils, filed a lawsuit against multiple parties when they found out about the accident. One of those parties included the Louisiana Department of Children and Family Services, which the Fils claimed should be liable because Geneva was under the custody and control of a foster parent which the Department assigned. The Fils sought monetary damages for Geneva’s injuries as well as loss of consortium, which is compensation for their familial loss for what Geneva’s injuries did to their health or family relationships. In 2011, Demitria Fils passed away and Geneva’s biological maternal aunt, Calvemia Reed replaced her in the lawsuit.

April 1, 2019

Road Granting a Landowner Access to His Property Declared for Public Use

by Berniard Law Firm

moor-land-3-1500234-1024x683 Having the town pave your road or conduct other maintenance may seem like a harmless occurrence. However, it can have a significant impact on determining whether your property can become public use.

One landowner, Thomas Bourque, Sr., needed access to the rest of his property, but two other landowners, Todd Gautreau and Gregory Scot Himel, resisted the idea that part of their lands would become public use in order for Bourque to access another part of his property. Bourque needed to access the southern part of his property in Ascension Parish because a bridge he had previously used for access was no longer usable. Bourque wanted to use the Hanson Road servitude for access to that property. Gautreau and Himel, the landowners who had established the Hanson Road servitude in 1992, did not want any further construction of Hanson Road for that purpose. The trial court declared the Hanson Road servitude to have been dedicated to public use with full access to Bourque. Himel and Gautreau appealed to the Louisiana First Circuit Court of Appeal. The First Circuit amended and affirmed the trial court’s judgment and concluded that the entirety of the 1992 servitude was tacitly declared as a public road.

Dedication of property for public use is done four ways: statutory dedication, formal dedication, implied dedication and tacit dedication. See Melancon v. Giglio, 712 So. 2d 535 (La. Ct. App. 1998). The formation of a public road may occur through a tacit order. See La. R.S. 48:491 (2017).

March 31, 2019

Requirements for Claims under the Oil Pollution Act

by Berniard Law Firm

oil-power-1182675-1-1024x768 Waiting until the last minute to do almost anything is not recommended but it is especially true if you are seeking to bring a claim for damages. That is what some fishermen found out when they sought to bring claims under the Oil Pollution Act of 1990 (OPA) for damages that resulted from an oil spill. The oil spill came from a barge owned by American Commercial Airlines, LLC (ACL) that had been involved in a collision on the Mississippi River in the Port of New Orleans on July 23, 2008.

On July 25, 2011, the fishermen claimants filed an action against ACL in the United States District Court for the Eastern District of Louisiana. The district court denied ACL’s motion for summary judgment but certified to the United States Court of Appeals for the Fifth Circuit two issues of law regarding the requirements for proceeding under OPA. One issue was whether the claimants met the requirements when they did not personally sign the claim forms and did not provide specific requested items in support of their claims. The other issue was whether the claimants had to make a proper presentment at least 90 days before the three year limitation period ran out. The first issue pertained to all claimants but the second issue involved only those claimants who first presented their claims on or after July 22, 2011, because those claimants had not waited the 90 days after first presenting their claims to file an action in order to not be barred by the three year limitation period.

Individuals and entities harmed by an oil spill may file claims for damages under OPA. To promote settlement and avoid litigation, there are specific procedures under OPA that claimants must follow. See Johnson v. Colonial Pipeline Co. , 830 F. Supp. 309 (E.D. Va. 1993). Under OPA’s presentment requirement, claimants must first present their claims to the responsible party and then wait until that party denies all liability or until 90 days from the time of presentment have passed before filing an action against that party. See OPA, 33 U.S.C. § 2713 (2016).

March 30, 2019

Ouachita Parish Right of Passage Lawsuit Not Barred by Res Judicata

by Berniard Law Firm

16-email-03-03-2019 Double jeopardy is not a television marathon featuring Alex Trebek, but protection against it is fundamental to the United States legal system. In the criminal justice system, double jeopardy means being put on trial for the same charge twice; the Fifth Amendment to the United States Constitution bans it. Res judicata, Latin for “a matter already judged,” is the civil version of double jeopardy. It means that someone cannot be sued for the same reason under the same circumstances twice. In this case, the Louisiana Second Circuit of Appeal found that res judicata did not bar a landowner from suing his neighbors twice for the same cause of action, obtaining a right of passage from a public road to his property.

In 2006, Entrada Company filed suit against three neighboring landowners to obtain a right of passage, alleging that it had no access to a public road. This form of relief allows a landowner to pass over the land of another in order to access his own land. In March 2014, Entrada Company filed another lawsuit against the same defendants for the same cause of action. In April 2014, two of the defendants filed a motion to dismiss on the ground of abandonment, which the trial court granted. Because Entrada Company had not pursued the first lawsuit, the court dismissed it with prejudice, meaning that it could not be refiled.20

The issue in this appeal is whether this dismissal with prejudice of the first lawsuit precludes the second lawsuit on res judicata grounds. Res judicata precludes a second action when: the judgment is valid, the judgment is final, the parties are the same, the cause of action existed at the time of the first judgment, and the cause of action in the second action arose out of the same circumstances as the cause of action in the first action. See La. R.S. 13:4231 (2017).

March 29, 2019

Foster Child’s Appeal Denied Following Highway 724 Crash

by Berniard Law Firm

12-email-03-03-2019-picture Life deals some people a tough hand. For Geneva Fils, a Louisiana infant in the foster care system, a car crash and severe injuries followed by a lengthy lawsuit added to her list of problems.

The Louisiana Department of Social Services (now known as the Department of Children and Family Services) took Geneva away from her biological parents following her birth. Several months later, on March 22, 2006, Geneva was in a car along with her foster parent, Mayola Calais and the driver Jennifer Hayes. Charles Guidry was driving in the opposite direction when he crossed the centerline, striking Geneva’s vehicle head-on. Geneva, who purportedly was improperly restrained in the vehicle, suffered a fractured skull among other serious injuries. Geneva’s biological parents filed a lawsuit on behalf of themselves and Geneva against the driver Guidry, her foster parent Calais, the driver Hayes, the State of Louisiana through the Department of Children and Family Services, and their insurance companies.

This particular decision came from an appeal of a motion for partial summary judgment involving a Louisiana statute which limited damages to $500,000 for any division or agency of the Louisiana government held liable for personal injury damages. See LSA-R.S. 13:5106(B)(3)(c) (2017). Plaintiffs argued that the individual defendants do not enjoy the protection of the damages cap, because unlike the Department of Children and Family Services, they are not a “state agency.” See LSA-R.S. 13:5102 (2017). The judge granted the Department’s motion as it concerned the Department’s liability for its negligent actions, but denied the motion regarding the Department’s vicarious liability for the actions of its agents. Both the Department and the plaintiffs appealed.

March 28, 2019

Tangipahoa Parish Bar Fight Case Remanded Because of Inadmissible Evidence

by Berniard Law Firm

6-email-03-03-19-Picture One bad decision can lead to a huge legal headache. The combination of a chaotic atmosphere and alcohol makes bars the perfect storm for mistakes that can later lead to huge liability. In a recent case, a man who punched another patron at a Tangipahoa Parish bar appealed a default judgment that awarded the victim over $100,000 dollars for personal injury damages and medical expenses.

After Ryan Martinez walked onto the bar’s dance floor to break up a fight between his friend and Trevor Wilson, Wilson allegedly turned to Martinez and punched him in the face. Martinez alleged that this punch fractured his mandible; he had to have his mouth wired shut for eight weeks and he could not eat solid foods or work. This small scuffle on the dance floor led to life-changing consequences.

Martinez filed a lawsuit against Wilson, the bar, and their respective insurance companies. Summary judgment was filed by the bar and it’s insurance companies wherein they argued that there were no facts present that could show that they could be held liable in this lawsuit. Martinez was required to present proof to the contrary to defeat the summary judgment. The trial court dismissed the lawsuit against the bar because the court found that the bar was not liable under tort as a matter of law. Wilson never appeared to answer the lawsuit, so the trial court awarded a default judgment of over $100,000 dollars to Martinez after he filed a Motion for Default and went to a hearing on that Motion. See La. C.C. art. 1702 (2017). Even when there was no opponent because Wilson never appeared in court, Martinez still had to use admissible evidence to prove his injury.