Civil Matter

August 8, 2019

What Do You Do When Someone Takes Your Dog From You?

dog-1401768-1024x768 Imagine coming home one day to discover your beloved pet is missing. Typically in this scenario, we would expect the judicial system to act in our favor if we know who the culprit is. This can be difficult across state lines, and even when the court is on your side, collecting on the ruling may not be so easy. It’s even more difficult if the court fails in legally required procedures of the case. In this case we are left with the question: what do you do when someone refuses to return your dog to you?

This case started when Kiley Wolfe’s mother, Janet Leland, deliberately took Wolfe’s dog, Daisy Mae, from Wolfe’s home in Baton Rouge, Louisiana. Leland took Daisy Mae back to her home in Florida. Despite Wolfe’s cordial requests, Leland refused to return Daisy Mae to Wolfe. Wolfe sued Leland seeking the return of Daisy Mae and damages, and the suit was personally served to Leland through a private process server.

About a month later, Leland filed a motion requesting an additional forty-five days to seek legal counsel. The district court granted Leland an additional fifteen days to file a responsive pleading, but Leland failed to file an answer to Wolfe’s petition. The Louisiana District Court granted a preliminary default against Leland but did not notify her of the preliminary default. Subsequently, the preliminary default judgment was confirmed, and the default judgment was rendered. The default judgment ordered Leland to return Daisy Mae to Wolfe and awarded her damages. Leland appealed this stating the default judgment was invalid because statutory procedures were not followed. Even though Leland made an appearance on record when she filed for a motion to extend, she was not given any notice of the default judgment.

August 7, 2019

What Happens When You Wait to File an Employee Discrimination Lawsuit in Louisiana?

by Berniard Law Firm

Summary judgment is a legal procedure courts may use to dispose of a case when there are not enough facts in dispute to proceed with a lawsuit. This is a good strategy to use when applicable because it purges certain claims that have no merit, saving time and money. The Fifth Circuit Court of Appeal demonstrated the principles of summary judgment within the context of an employment discrimination lawsuit when it comes to untimely filing.

The plaintiff in this case, DeBlanc, suffered from a condition called “chemo brain” after undergoing prior breast cancer treatments. When DeBlanc was fired, she sued her employer for failure to tell her why she was terminated. DeBlanc alleges that the St. Tammany Parish School Board violated the Americans with Disabilities Act (“ADA”) and discriminated against her when they fired her because of her medical condition. A Federal Court in Louisiana determined that summary judgment in favor of St. Tammany was appropriate because DeBlanc failed to file her discrimination claim within the required timeframe and failed to show that the time limit should be tolled. Thus, the claim was barred. DeBlanc appealed. The issue upon appeal was whether the trial court abused its discretion when refusing to apply equitable tolling to save DeBlanc’s claim. Equitable tolling is applied when the court decides there is a legal and justifiable basis to extend the time in which plaintiff can file her claim. The Fifth Circuit Court of Appeal agreed with the trial court and affirmed summary judgment in favor of St. Tammany School Board.

A former employee has three hundred days from the date of termination to file an Equal Employment Opportunity Commission (“EEOC”) complaint alleging that they were terminated based on discrimination. See 42 U.S.C. § 2000e-5(e)(1); 42 U.S.C. § 12117(a). Filing a timely discrimination claim with the EEOC is a requirement that is subject to waiver, estoppel, and equitable tolling. Granger v. Aaron’s, Inc., 636 F.3d 708, 711 (5th Cir. 2011). However, equitable tolling is applied sparingly, and the burden is on the plaintiff to prove its application.

August 6, 2019

Can You Claim Medical Malpractice If You Develop A New Condition After Surgery?

by Berniard Law Firm

56-1024x678 Having surgery is always a stressful situation. Nobody wants to leave the hospital only to return a short time later from complications due to the first surgery. This is unfortunately what happened to Mr. James Nelson, who sued his surgeon, Dr. F, in East Baton Rouge Parish. So, what happens when you develop a new medical condition after your surgery?

In November 2009, Dr. F performed gallbladder removal surgery on Mr. Nelson. Several hours after Nelson was discharged from the hospital, he experienced pain in his lower abdomen, stomach, and sternum. Nelson returned to the hospital, where he was informed that he was suffering from pancreatitis. Nelson was admitted for care in conjunction with the pancreatitis and was released four days later.

One year later, Nelson requested the formation of a medical review panel, claiming that Dr. F committed medical malpractice by allowing contrast dye to enter Nelson’s pancreatic duct during his gallbladder removal surgery. Nelson claims that this was the cause of his pancreatitis. Nelson also claims that he was never informed that pancreatitis is a possible outcome from the type of surgery performed.

August 5, 2019

When You Fall off a Ladder Whose Fault Is It?

by Berniard Law Firm

ladders-1173769-1024x683 When you ask a friend for a favor, whether it is for a ride to the airport or for help cleaning up a room, you never expect that you will end up facing off against each other in a lawsuit. However, when you do end up in such an unfortunate situation, it is important to have a good lawyer on hand to ensure that the dispute is resolved in the quickest manner possible. Michael P. Cox found himself in just such a situation when his friend Laina Dutton offered to help him clean out the building of his recently closed business, Xtreme Nutrition, located in Baton Rouge, Louisiana. When Mr. Cox was out of the room, Ms. Dutton decided to climb a ladder and remove a banner that was hanging on the wall. The ladder was not in a secure location and Ms. Dutton fell backward off the ladder injuring her back and side. She sued Mr. Cox, Xtreme Nutrition, and Allstate Insurance, the insurer for Mr. Cox and Xtreme Nutrition. Ms. Dutton’s lawsuit for negligence was premised on the argument that Mr. Cox owed her a duty to erect the ladder safely, monitor and assist her in the use of the ladder, and warn her of any danger in using it. She argued that the ladder had been set up in a dangerous manner because it was not placed on a flat surface, that Mr. Cox did not warn her of this issue, and that he was at fault for her fall due to his inattentiveness. Ms. Dutton suffered injuries to her arm, back, and spine. For these injuries, she sought special and general damages.

However, the lawsuit never made it to trial. The Trial Court granted summary judgment in favor of the defendants and dismissed the case with prejudice. The Trial Court dismissed the case following pre-trial discovery based on its finding that there was a lack of evidence supporting a negligence claim and that Mr. Cox did not owe a duty to Ms. Dutton. Ms. Dutton appealed, arguing that the Trial Court erred in dismissing the case, but the Louisiana First Circuit Court of Appeal affirmed the dismissal. So, why was Mr. Cox not found negligent in Ms. Dutton’s fall?

The Trial Court based its dismissal on its view that Ms. Dutton could not produce enough evidence to support the negligence claim. This was because Ms. Dutton was not an employee of Xtreme Nutrition, and Mr. Cox did not pay her to help him clear out the newly closed offices. Further, Ms. Dutton climbed up on the ladder while Mr. Cox was in another room. He had not asked her to climb the ladder and probably did not even know she had gone up. Ms. Dutton even admitted that she had used the ladder before the fall without any problems and did not think the ladder was defective in any way. Because Ms. Dutton had not been instructed by Mr. Cox to go up the ladder, and there was no evidence that he had set up the ladder in a negligent manner, the Trial Court determined that there was no evidence to support a negligence lawsuit following discovery. Thus, the Court dismissed the case before heading to trial. From this decision Ms. Dutton appealed, arguing that the Trial Court erred in two major ways. First, she argued that the only reasonable explanation for the ladder fall was that it had been improperly set up by Mr. Cox. Additionally, since Mr. Cox had set up the ladder, he owed her a duty to properly set it up and he had failed in that duty when he allowed her to climb the ladder in such an unsafe condition. Second, Ms. Dutton argued that in his deposition testimony, Mr. Cox had admitted that he set up the ladder in a dangerous manner by placing one leg on a part of an adjacent desk and the other on the ground, leading to an imbalance that caused the fall. Ms. Dutton argued that these two points were genuine issues of material fact that should preclude a summary judgment dismissal.

August 4, 2019

How To Sue Your Lawyer For Not Filing Your Claim On Time in Louisiana

by Berniard Law Firm

time-s-slipping-away-2-1419474-1-683x1024 For any legal claim, there is a set period of time for which the claim must be brought. This set period of time is known as a statute of limitations, which can vary based on the type of claim. If a claim is not filed prior to the expiration of the statute of limitations, the right to bring the claim is extinguished. Furthermore, if an attorney was retained to bring the claim and failed to do so in a timely manner, the attorney may be sued for malpractice. So, in Louisiana can you sue your lawyer for not filing your claim on time?

There are four elements of a malpractice claim, these include (1) duty to act, (2) a breach of this duty, (3) and this breach of duty caused the (4) damages. The duty element requires the claimant to show that the attorney owed an obligation to act with reasonable care. The breach element requires the claimant to show that the attorney breached his or her duty to the claimant. The causation element requires the claimant to show that the attorney’s conduct caused some harm –– in this case, financial harm –– to the claimant. The damages element requires the claimant to show that he or she suffered actual financial loss as a result of the attorney’s conduct.

In the present case, Nathan Lewis allegedly injured his back, neck, and knees while employed with Archer Daniels Midland Company (ADM) as a longshoreman. Mr. Lewis reported his injuries to his employer, ADM, who denied Lewises compensation claim but informed him that he could file a Longshore and Harbor Workers’ Compensation Act (LHWCA) claim with the United States Department of Labor. Lewis then retained the services of Timothy Young and Timothy J. Young for purposes of filing such a claim, but then terminated their services on July 2, 2012.

August 2, 2019

What Happens When Someone Ignores a Non-Compete Agreement in Louisiana?

by Berniard Law Firm

businessmen-shaking-hands-1240995-1024x643 A non-compete agreement often takes the form of a clause in an employment contract whereby an employer seeks to restrict a former employee’s ability to compete with the employer after the employment relationship is terminated. These types of clauses are usually valid if they are reasonable in scope, time, and area and line of business. But, what happens happens when someone ignores a non-compete agreement in Louisiana?

In the present case, four investors formed a company in Shreveport, Louisiana, called Endurall, Inc. to manufacture and sell rod guides to local businesses in the oil and gas industry. The four investors signed a non-compete agreement, which stated that, if any of them were to be terminated as shareholders, they would not establish another business to compete against Endurall for at least two years after termination.

Billy Joe Edwards was terminated as a shareholder of Endurall on July 31, 2013. Less than a year after his termination from Endurall, in March 2014, Edwards and his son formed a new company, DHE, LLC in Benton, Louisiana, which posed competition for Endurall in the manufacture and sale of rod guides. As a result, several Endurall sales representatives left Endurall to work at DHE, and some of Endurall’s customers switched from Endurall products to DHE products, causing Endurall’s sales to decline.

July 27, 2019

How Can Being Persistent in a Workers’ Compensation Case Help You?

by Berniard Law Firm

no-entry-1311573-1024x768 Filing dates and deadlines often add an extra layer of stress to an ongoing case. When poor health contributes to the challenges in meeting these deadlines, persistent advocacy can sometimes make up the difference. So how can being persistent help you in a workers compensation case?

After an unfortunate work-related accident involving an exposed electrical wire, Christopher Gilley (Mr. Gilley) initiated a disputed claim for compensation against his employer, Gilley Enterprises, Inc. (Enterprises) on September 10, 2014. Mr. Gilley suffered from numbness and regular pain in his back and neck following the incident. He continued to work for Enterprises, a company Mr. Gilley’s uncle owned, after the incident, albeit on a less regular basis, due to his condition.

Mr. Gilley claimed entitlement to indemnity benefits, including penalties and attorneys’ fees. Enterprises asserted doubts regarding whether Mr. Gilley actually experienced an injury in the course of his employment. In response to Mr. Gilley’s amended answer, Enterprises submitted a fraud defense pursuant to La. R.S.23:1208. Enterprises not only alleged Mr. Gilley did not suffer any injuries, but that he gave false testimony as well. Overall, Enterprises’ defense cast doubt over the sincerity of Mr. Gilley’s attempt to collect benefits.

July 25, 2019

How Can You Prove Employment Discrimination in Louisiana?

by Berniard Law Firm

the-graduate-1543243-802x1024 There are many reasons why someone can be fired from a job. In order to succeed in a claim for wrongful discharge because of discrimination, a plaintiff must satisfy various elements and provide sufficient evidence.

Plaintiff-Appellant Arthur Moghalu sued his former employer, the Board of Supervisors for the University of Louisiana System for Northwestern State University (the Defendant), alleging violations of Title VII of the Civil Rights Act of 1964. Moghalu claimed that he was improperly fired from his job because of his race and national origin. At trial, the district court granted the Defendant’s Rule 50 motion for judgment as a matter of law after Moghalu presented his case. The issue on appeal was whether the district court properly granted the Defendant’s Rule 50 motion.

Moghalu applied to be an Assistant Professor of criminal justice at with Northwestern State University (NSU) in 2006. Moghalu, a dual-citizen of Nigeria and the United States, interviewed with the head of the department, Joe Morris. Under Mr. Morris’s recommendation, Moghalu was offered employment beginning in August 2006. The offer for employment provided Moghalu a contract based on a 9-month term, which was subject to annual review and potential renewal. At the time, Moghalu had achieved ABD (all but dissertation) doctoral status, which meant that he only had to complete his dissertation to reach Ph.D. status. Moghalu, based on his projections, anticipated completing that dissertation by December 2006 and represented as much to the head of the department. However, as time would tell, the projection was inaccurate, and though Moghalu continued to work on it, he did not finish the dissertation as an employee of NSU.

July 22, 2019

What Do You Do When Your Employer Denies Workers Compensation Benefits?

by Berniard Law Firm

bedroom-bliss-no-3-1542621-1024x768 Workers’ compensation claims can be very stressful for the injured employee. Because of this, the law in Louisiana will help offset the legal costs of workers’ compensation claim denials by employers by awarding penalties and attorney fees ( PA&F) if the employer is found to have improperly denied the employees claims for medical treatment. This was the case for a Calcasieu Parish employee who experienced trouble sleeping due to pain from her injury. So, what do you do when your employer denies your workers compensation benefits?

Stephanie Lemelle Ardoin was injured while working for the Calcasieu Parish School Board at the beginning of 2013. After the injury, she was awarded workers’ compensation benefits and received treatment for her back injury. Ms. Ardoin’s treatment included a laminectomy. She also had a fusion of her L4-5 vertebrae performed by Dr. Chris Gunderson.

Following the surgery, Ms. Ardoin received care from Dr. Gunderson and was also provided with care from Dr. Daniel Hodges to deal with pain. She received care from Dr. Hodges because she was still experiencing pain and was having problems sleeping. Eventually, both doctors gave a prescription for an adjustable mattress to help with the sleeping issues. The adjustable mattress request was sent to WellComp Managed Care Services for review. WellComp denied this request on the grounds that it did not meet the Workers Compensation insurance guidelines. WellComp stated the claim was inadequate because there was no medical rationale to support the need for the adjustable mattress.

July 21, 2019

Can You Sue a Casino for Never Hitting the Jackpot?

by Berniard Law Firm

slot-machines-1417312-704x1024 There is a strong public policy reason for voiding all contracts that concern illegal activity. A Shreveport casino used the help of an excellent attorney to rely on this principle when a customer brought a lawsuit against it because his use of a preferred slot machine was discontinued. Because there was no possible way for a contract to be formed there was not a legal avenue to bring the lawsuit under. Thus leaving the question, can you sue for never hitting the jackpot?

Matt Master alleged that he was given the exclusive use of their preferred slot machine for a 16 ½ month period by Red River Entertainment, LLC which does business by the name Sam’s Town Casino. Both Mr. Master and his wife were given the exclusive use of a slot machine. When they weren’t using it, the machine was “capped” by the Casino’s management, this prevented others from using the machine while he and his wife were taking a break. This “capping” period started off for periods of a couple of hours and eventually would be granted for periods up to a whole day.

The machine was selected by Mr. Master because the jackpot was around $101,000 and it had not hit a jackpot for 2 years. Over 16 ½ months, the jackpot of the machine increased to $155,300. Mr. Master alleged that the Casino’s management told him that the machine was probably close to hitting another jackpot. He also alleged that in 2013 he lost over $500,000 on the machine. After failing to hit the jackpot over 16 ½ months Mr. Master filed a complaint with the State Gaming Commission to investigate why the machine had never hit a jackpot. Once the Casino’s management learned of the complaint, Mr. Master was banned from the slot machine and the casino. Mr. Master filed a lawsuit based on his dismissal from the Casino as well as the slot machine never reaching a jackpot. The Casino responded by arguing that there was no cause of action. The Trial Court agreed and dismissed Mr. Master’s claims.