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hand-with-money-1056938-1024x689It is not uncommon for a victorious party in a lawsuit to seek attorneys’ fees upon their win.  There is no guarantee however the judge will agree an award of attorneys’’ fees are warranted.   In some cases filed in state court, the defendant can remove the case be heard in federal court.  If the federal court lacks jurisdiction, however, the case will be sent back to state court.  Whether the attorneys’ fees associated with the removal process can be recouped by the winning party is the subject of a recent lawsuit out of New Orleans.

CamSoft Data Systems, Inc. (“CamSoft”)  teamed up with Active Solutions (“Active”) and Southern Electronics Supply (“Electronic”) to install video surveillance systems in New Orleans. Just before the trio submitted their proposal for their joint venture for the future sale of the video surveillance system, Dell, Inc. (“Dell”) used their existing contract concerning the sale of technology to the state of Louisiana to halt the proposal. Moreover, Dell then sought to oust CamSoft from its joint venture with Active and Southern, who both then sold proprietary information that belonged to CamSoft. Later, in another business dealing, Dell ousted Southern and Active and replaced them with NetMethods, and cut Southern and Active out of the agreed arrangement.

CamSoft filed a lawsuit against Dell in Louisiana State Court, seeking its rights in the video surveillance system recognized and a share of the proceeds of the suit Active and Southern had against Dell. Using state law instead of federal patent law, CamSoft alleged breach of fiduciary duty and breach of contract.

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to-market-1510735-1024x768No legal case is without controversy, but some of the most controversial types of cases involve a slip and fall injury. For some, it is hard to believe that a “little fall” could actually cause substantial injury. Often times, those who bring a slip and fall action are seen as milking the situation to try to get money from a business. However, when a person is injured he or she must prove that the injury was the result of someone’s alleged negligence. This proof requires that the injured individual show that the facts surrounding the incident support his or her claim. When coupled with a stringent legal standard, a dispute of what occurred at the time of the injury complicates the matter. The following slip and fall lawsuit filed against the Albertsons in Shreveport, Louisiana, shows the difficulty in bringing such claims to trial.

Yvonne and Aristide Ton were visiting an Albertsons’s grocery store in 2013. Upon arriving at the store, Ms. Ton went straight to the display of pumpkins out front, while Mr. Ton went to get a cart. After looking at the pumpkin display, Ms. Ton looked around for her husband, took a step or two, and then fell injuring her shoulder. Ms. Ton could not identify exactly what happened when she fell, but she claimed in her lawsuit that the fall was caused by a “defect in the concrete.” Albertsons responded by claiming that the concrete area where Ms. Ton fell posed no reasonable risk of harm. Albertsons provided witness testimony stating that the area where Ms. Ton fell had no prior history of falls and that the store had received no complaints regarding the area around the pumpkin display.

Under Louisiana Law, a business must “keep aisles, passageways, and floors in a reasonably safe condition.” La. R.S. 9:2800.6. This duty imposes a reasonable effort on the business to keep its premise free of any unsafe conditions which may cause injury. To bring a slip and fall claim against a business, the injured person must prove three things: 1) the floor surface presented an unreasonable and foreseeable risk of harm 2) the business created or knew of the unsafe floor surface and 3) the business failed to use reasonable care.

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lawnmower-1219945-1024x680When a case goes to trial, there are many nuances that a lawyer might have to address, including a motion for a continuance or a dismissal. A continuance is the postponement of a hearing, trial or other scheduled court proceeding at the request of either party or by the judge. A dismissal occurs when the court ends a legal action before completing the trial process. This case out of the Parish of East Baton Rouge demonstrates Louisiana’s requirements for a continuance or a dismissal in the district courts.

While Wayne Boyd was driving on Main Street at Regions Bank in Zachary, Louisiana, a rock was thrown from a lawnmower broke his window and struck his face, resulting in personal injury and property damage. Boyd filed a petition for damages against John Doe, who was operating the lawnmower, and Doe’s employer, BNL.

At the pre-trial conference on March 18, 2014, the District Court for the Parish of East Baton Rouge set a trial date of May 20, 2014. On the scheduled date for trial, Boyd was nervous, unstable and remained outside of the courtroom. Boyd’s attorney asked for a continuance of the trial because Boyd needed to think and discuss the problem with family. Boyd’s attorney also indicated that he could not proceed with trial because he had just taken the case over and did not have certified copies of records. BNL was present in the courtroom, with all exhibits and witnesses, and was ready to proceed with the trial. The District Court denied the motion to continue but stated that it would not entertain a motion to dismiss for at least 10 days. On July 9, 2014, BNL filed a motion to enforce the settlement, asserting that Boyd and BNL have reached settlement agreements. On August 28, 2014, the District Court granted BNL’s motion to dismiss. Boyd appealed the dismissal to the Louisiana First Circuit Court of Appeal.

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vertebrea-3-1559248-1024x768“My neck, my back, my neck and my back” is a cliche that has been used in television shows and movies when someone gets hurt in an accident and likely tends to file a lawsuit. Although Caddo Parish, Louisiana woman, Ruth Toliver, may not have used the exact phrase, she did fall on the job and filed for workers’ compensation benefits. After receiving a workers’ compensation settlement, she filed a lawsuit to recover for additional injuries.  But whether Ms. Toliver could recover twice proved another matter.   

While on the job working for Entergy Services, Inc (ESI), Ruth Toliver injured her neck and left shoulder when she fell from a three-foot high stepladder and hit the floor. She received workers’ compensation benefits shortly after the incident and continued to receive the benefits until they were terminated close to the end of 2010. Mrs. Toliver disputed the termination of benefits with the Office of Workers’ Compensation in January of 2011. Mrs. Toliver and ESI agreed to settle the matter for $58,909.93 that would be paid to Mrs. Toliver, plus all the related medical bills that she incurred prior to the date of settlement. The agreement provided that $43,909.93 of the settlement would be earmarked for a Medicare account for future medical bills. The total amount of workers’ compensation benefits that ESI paid Mrs. Toliver was $397,763.75.

The agreement released ESI from any and all liability for the work accident. About two years after signing the settlement agreement, Mrs. Toliver filed a lawsuit with the Louisiana Trial Court, claiming that in addition to her initial injuries, she also injured her head, right shoulder, and back in the fall. ESI objected to Mrs. Toliver’s lawsuit based on the settlement agreement. ESI argued that she was barred by claim preclusion because the settlement agreement was signed into a final order of approval and dismissal.  The Trial Court agreed and Mrs. Toliver appealed the decision.

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demolition-1575129-1024x666Imagine 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.

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chinese-text-1-1314353-1024x768Res Judicata, also known as claim preclusion, is a Latin term that literally means “for a matter judged.” In the legal system, res judicata is a doctrine that prohibits a second lawsuit from being filed for a matter that has already been judged or decided on the merits. Once parties to a lawsuit have had the opportunity to be heard by the court and the court rules on the claims asserted in the lawsuit, those parties are generally not ever again allowed to bring a lawsuit against the same parties for the same claims that arose from the same transaction or occurrence.

Res judicata prohibited a Mandeville, Louisiana man, George Cepriano, Jr., from being allowed to file a lawsuit against Lowe’s Home Center (Lowe’s).  But, Mr. Cepriano, never personally filed the first lawsuit against Lowe’s. Mr. Cepriano’s lawsuit against Lowe’s was not barred solely due to res judicata, but due to an already adjudged class action lawsuit of which Mr. Cepriano was a class member.  A class action lawsuit permits one or more people to bring a lawsuit on behalf of all class members. A class action ruling results in a res judicata blanket application for all members of the class.

Mr. Cepriano’s journey to the Louisiana First Circuit Court of Appeal began after he bought a newly built home in Mandeville, Louisiana. About two years later, while trying to sell the home to a potential buyer, Mr. Cepriano learned the home was manufactured with defective Chinese-made drywall.  Mr. Cepriano filed a lawsuit against Diamond Investments of Louisiana, L.L.C., the property seller, and B Square Builders, L.L.C., the contractor/builder, and Lowe’s.

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money-1239608-1024x768Most of us probably owe money to someone.  Whether it be for our home, a vehicle, a credit card or even just to a friend.  A common legal tool called a garnishment is one way of using the civil court system to help recover money owed to you when someone is not paying their debts. Garnishment is explained in a recent case out of East Baton Rouge Parish, Louisiana.  

In this case, the original lawsuit was between Foundation Materials, Inc. (“FMI”) and Harmon Construction, L.L.C. (“Harmon”).  FMI obtained a money judgment against Harmon in the amount of $102,475.42.  At the time of this case, Harmon was working on an unrelated project with D.F. Chase, Inc. (“Chase”) as a subcontractor.  Chase allegedly owed $98.510.00 to Harmon for its work.  In order to collect upon the judgment against Harmon, FMI filed a garnishment naming Chase as garnishee and issued interrogatories, sets of questions, to Chase to determine the amount of money that Chase owed to Harmon.  Chase contended it only arguably owed $98,510.00 to Harmon and refused to turn over the money to FMI.

A garnishment is a legal process for obtaining property of a judgment debtor in the hands of a third party. Covington Pontiac-Buick-GMC Trucks, Inc. v. AAA Sewer & Water Fabrication & Serv., LLC, 873 So.2d 56 (La. Ct. App. 2004).  The test of a garnishee’s liability to the judgment creditor is whether the garnishee has in his hands the debtor’s property, funds, or credits for the recovery of which the debtor has a present subsisting cause of action. Houma Mortg. & Loan, Inc. v. Marshall, 664 So.2d 1199 (La. Ct. App. 1995). A garnishment judgment is entered and the garnishee required to pay the creditor if the garnishee admits to having property belonging to the debtor pursuant to La. C.C.P. art. 2415.

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nice-bike-1547666-1024x768The majority of cases, civil and criminal alike, never make it to trial. The parties may settle the case out of court or the claims may simply be dropped by the plaintiff. A third reason why a case may not make it to the jury is if a judge grants a party’s motion for summary judgment; a fate that almost befell Orleans Parish citizen John Ludlow’s negligence claim in September 2015.

In September 2014, John Ludlow, Jr. was a bicyclist waiting for the ferry at the Canal Street Ferry Terminal. As he waited for the ferry, he sat on a concrete barrier and fell backward, hitting the rocks below the platform. Mr. Ludlow sustained extensive injuries because of his fall and in turn, filed a lawsuit against the State of Louisiana, Department of Transportation and Development, Crescent City Connection Division (hereinafter “the State”) in Orleans Parish District Court.

The State filed a few motions for summary judgment.  Summary judgment is when one party moves for the court to automatically rule in the moving party’s favor before a jury or judge has rendered a verdict.  A judge can grant a motion for summary judgment when the judge finds that there is “no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law” pursuant to La. C.C.P. art. 966(B).

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forest-2-1550924-1-1024x768Imagine 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.  

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barge-1544176-661x1024Sometimes we are asked to do a task at work that we do not feel qualified to perform. We think things like, “Hey, that wasn’t in my job description.” Well, that’s essentially what happened to Mark Barto but, unfortunately, attempting to perform his assigned task resulted in a back injury that led Mr. Barto to file a lawsuit.

Mr. Barto worked for Shore Construction, LLC (“Shore”) and was assigned by his company to perform the duties of a rigger on a derrick barge operated by McDermott, Inc. (“McDermott”). Unfortunately, Mr. Barto was met with the rare task of inspecting and providing maintenance on a cable crane. In fact, this type of job is done approximately once every two years. Mr. Barto had no experience providing this kind of maintenance and yet his superiors requested that he assist and then re-spool the cable. Mr. Barto was given no guidance on how to do the task and, according to the affidavits of a crewmember, he was “one of the lowest ranking riggers on the barge.”

To allow himself to effectively complete the task, Mr. Barto set up a makeshift scaffold within the spooling frame, as he seen someone else performing the task do. In this case, he laid a fir board across the frame to stand on in order to reach the cables.

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