Civil Matter

April 5, 2017

Failure to Prosecute Case Results in Dismissal of Lawsuit in Zachary, Louisiana

broken-glass-1221856-1024x769 Filing and pursuing a lawsuit is no small task. Besides the often-significant monetary aspect, a plaintiff (the party filing the lawsuit) should be prepared for a large time commitment and effort in providing the necessary evidence to support their case. Good lawyers know how to aid their clients in gathering evidence and navigating the logistical aspects of a lawsuit as efficiently as possible. Litigation can sometimes take years, but a seasoned lawyer will know how to provide the motivation clients need to successfully pursue their claims and reach recovery. In a recent case out of Zachary Louisiana, the plaintiff filed a lawsuit he was simply not prepared to effectively maintain.

Wayne Boyd was driving past a Regions Bank in Zachary, Louisiana when suddenly a rock flew through his window, breaking the glass and hitting him in the face. Allegedly, the rock was thrown by a lawnmower operated on Regions Bank property by a landscaping service. Boyd filed his lawsuit in 2010 and, after some confusion over the right person to sue, BNL Enterprises, LLC – the landscaping service – was added as the defendant in 2011. In October 2013, the District Court set a trial date of May 20, 2014. Despite the immense amount of time to prepare, on the date of the trial, Boyd requested a continuance of the trial because he felt he was emotionally unprepared. BNL was prepared for trial and opposed the continuance.

The District Court Judge orally denied the request for a continuance. The Judge gave the parties ten days to attempt to resolve the case themselves. After the ten days was up, the Judge stated he would entertain defendant’s motion to dismiss the case for plaintiff’s failure to prosecute.

April 4, 2017

In Louisiana How Do You Prove A Child Born Outside a Marriage is Your Child? Avowal Actions Explained

by Berniard Law Firm

baby-1435548-1024x683 The goal of marriage is often “happily ever after.” Sometimes, it does not end up working out that way. What happens when a child born during a marriage is the result of an affair? What legal rights does the real father have towards establishing that the child is his? The following case out of Acadia Parish demonstrates Louisiana’s jurisprudentially-created doctrine of avowal.

Michael Leger and Danielle Leger were married in 2007. In the Fall of 2011, Danielle had an affair with John Fontenot. Danielle became pregnant with Gracelynn Leger, who was born in August 2012. Fontenot had a DNA test done in October 2012, which indicated he was Gracelynn’s father.

On March 3, 2014, Fontenot served Michael with a petition for custody of Gracelynn, alleging that he was Gracelynn’s father. Michael was notified for the first time of the affair between Danielle and Fontenot and that he might not be Gracelynn’s father. In May 2014, Michael filed a petition for divorce against Danielle. Fontenot filed a Petition for Intervention, for Paternity and Custody, alleging that he was unable to file a timely avowal action because he feared for the safety of Danielle and Gracelynn. Michael filed a Peremptory Exception of Preemption, No Right of Action, and No Cause of Action.

March 31, 2017

Name Calling Could Cost Big Bucks in Louisiana

by Berniard Law Firm

jim-1484424-1024x768 Ever wondered about the seemingly daunting world of contracts: the myriad of pages and often boring mechanical reading, not to mention those terms and conditions written in legalese? For most of us, not really. That’s for sure. But sometimes contractual disputes can be interesting. Ever hear the saying don’t mix business with pleasure? Well in a recent case, the Louisiana Court of Appeal was called upon to rule upon the terms of a settlement agreement that prohibited the parties from making disparaging or negative comments about each other.

In 2006, Mary N. Boros and Mark Lobell, after having a four-month sexual fiasco entered into a Settlement Agreement. The Settlement Agreement contained the terms and conditions for the termination of their professional and personal relationship. A settlement agreement is a form of contract and just like any other contract its terms can be breached, or in other words dishonored by one or both of the parties who entered into the contract. The Settlement Agreement here contained, among other provisions, a provision where Mary and Mark agreed not to say or author anything that disparages, criticizes, defames or otherwise reflects negatively upon the name of the other (the “non-disparagement” clause).

From September 22, 2003, through October 6, 2006, Mary was employed by a Louisiana company, Performance Medical, Inc. The company owned by Mark. While Mary was employed by Performance Medical she engaged in a consensual sexual relationship with Mark, which lasted for approximately four months. The facts are up in the air as to the circumstances surrounding Mary’s eventual termination from Mark’s company, but after Mary threatened to file a sexual harassment lawsuit against Mark the parties entered into the Settlement Agreement. The controversy arose when Mary began a competing limited liability company named Specialized Diagnostics, L.L.C., and Mark allegedly infringed on her business by among other things making defamatory statements which included statements to the effect that Mary’s business practices were illegal. So, on December 18, 2007, Mary filed a petition for damages against Mark and his companies, alleging that he and/or members of his staff violated the non-disparagement clause of the Settlement Agreement.

March 30, 2017

A Tale of Two Stories: Differing Story Details Allow Excessive Force Charges Against Deputy Stand Trial

by Berniard Law Firm

school-bus-1-1450452-1024x683 As the adage goes, there are two sides to every story and when it comes to lawsuits, the details of those stories can make the difference between a courtroom success and a case never making it to trial. A case arising out of Mandeville, Louisiana is the perfect example of just how important the details of a story can be.

At the beginning of many lawsuits, a good lawyer will often seek summary judgment when appropriate, which allows a case to be resolved before going to trial. A court will only grant summary judgment when there is no material issue of fact; if a reasonable jury could only find in favor of the party moving for summary judgment then there is no need for the case to move forward. In the case of April Curran, a few differing details in her recounting of events ensured that her case defeated a summary judgment motion and moved on to be heard at trial.

Student cell phone use was prohibited on Fontainebleau High School’s campus, but on September 24, 2008, April Curran, a sophomore at the school, missed the bus to her afternoon classes and used her cell phone to call her mother. Curran took morning classes at Fontainebleau and attended afternoon classes at the New Orleans Center for Creative Arts (NOCCA). A teacher who witnessed Curran’s phone use instructed Curran to give him the cell phone or go to the disciplinarian’s office. Curran refused to give the teacher her phone but told the teacher she needed to go to the NOCCA campus. The teacher called in Phillip Aleshire, a deputy with St. Tammy’s Parish Sheriff’s Office and the school’s resource officer, for assistance and told the officer Curran was attempting to get away.

March 27, 2017

Louisiana’s Fact-Pleading System Allows Woman to Recover for Battery When Only Suing for Negligence

by Berniard Law Firm

hummer-h-2-1450806-1024x768 The law often hinges on technicalities, which is why technical accuracy is critical in ensuring that all parties to a lawsuit have a fair and adequate understanding of the issue and that courts operate efficiently. Despite this importance, courts do not want justice to be skirted on the sole basis of a technical error. The Second Circuit Court of Louisiana emphasized this sentiment when it allowed a woman to recover damages for battery, despite the fact that she only alleged negligence in her pleadings. The court was able to do so under Louisiana’s fact-pleading system which allows recovery as long as the facts necessary to establish a claim are pled.

The incident from which this case arose occurred on July 14, 2012, on the shoulder of Highway 84 near Winnfield, Louisiana. Devon Zimmerman and Michael Carter were in a Monte Carlo when, according to Zimmerman, a person driving a Hummer, (Hummer) sideswiped the car. The vehicles then parked on the shoulder of Hwy. 84. After parking, Zimmerman and Hummer got into a physical altercation which Carter broke up. Minutes later another party arrived and parked behind Zimmerman’s Monte Carlo, trapping the car. One of the parties in the lawsuit alleged that the driver of the Hummer then returned to the Hummer and rammed the Monte Carlo three times. Zimmerman’s insurance company, State Farm, later determined that the Monte Carlo was a total loss.

Zimmerman filed suit against the parties who she believed were at fault and Progressive their insurance company. Progressive alleged that the events were not accidental. The Trial Court dismissed Progressive by directed verdict on the grounds that the acts by the driver of the Hummer were clearly intentional. The jury found the driver of the Hummer at fault for intentionally ramming the Monte Carlo, further finding that Zimmerman’s actions were not a proximate cause of the accident. The jury found that Zimmerman proved physical and emotional pain suffered as a result of the accident and awarded her $70,000 in general damages and $12,819.50 in medical special damages. It also found the driver of the Hummer liable for all costs of litigation.

March 19, 2017

Appellate Court Says Pro Se Plaintiff Can Proceed With State Law Discrimination Claims Against Tulane Hospital

by Berniard Law Firm

hospital-02-1505482-1024x768 Discrimination has always been a controversial topic in America and especially salient in the workplace context. The following case arises out of a situation where an employee felt that she was discriminated against based on her race and disability. She sued in federal court based on federal and state discrimination laws.

Ms. Shawlean Lee, a former employee of Tulane Hospital, filed the federal lawsuit without an attorney, known as proceeding “pro se.” The controversy in question was the termination of her employment in November 2011. Soon after the termination of her employment, Ms. Lee followed the proper procedure by filing a Charge of Discrimination with the Equal Employment Opportunity Commission, also known as the EEOC. About a year and a half later, in April 2013, the EEOC issued what is known as a “Right to Sue” letter, which stated that Ms. Lee had 90 days to file a legal action against her former employer for violations of federal discrimination laws.

Ms. Lee filed the federal lawsuit in September 2013, more than 90 days after receiving the “Right to Sue” letter from the EEOC. As a result, Tulane Hospital moved to dismiss the complaint because it was untimely. In what would later be seen as a crucial oversight by Tulane Hospital, the motion to dismiss only mentioned the federal claims brought by Ms. Lee and not the state law claims. The Trial Court granted the hospital’s motion to dismiss and again Ms. Lee’s state law claims were overlooked. After the Trial Court dismissed Ms. Lee’s case, she appealed to the United States Fifth Circuit Court of Appeal. The Court of Appeal has analyzed the case and issued a brief five-page opinion.

March 18, 2017

Plaintiff Fails in Appeal of Employment Termination Case out of St. John the Baptist Parish

by Berniard Law Firm

police-car-1414442-1024x683 Law enforcement agencies throughout the country have been under intense scrutiny over the past few years because of controversial policies and procedures. However, one agency in Louisiana, the Sheriff’s Office of St. John the Baptist Parish, faced another type of scrutiny surrounding the termination of a high-ranking official. The termination resulted in a lawsuit based on federal and state law.

The controversy dates back to 2013 when the Plaintiff, Tregg Wilson, was employed by the Sheriff’s Office as Chief Deputy. In May of that year, Mr. Wilson discovered that there was automatic and constant video and audio surveillance in the office interrogation rooms. Mr. Wilson believed that this might present some legal problems for the Sheriff’s Office, so he reported the issue to the Sheriff, Mike Tregre. Mr. Wilson also reported the issue to Internal Affairs, as well as the District Attorney. In turn, the District Attorney asked the Louisiana State Police to investigate the issue. The State Police ultimately determined that there were no legal issues with regard to the surveillance in the interrogation rooms. Shortly thereafter, Mr. Wilson was terminated from his employment with the Sheriff’s Office.

In the subsequent lawsuit filed in federal court, Mr. Wilson claimed that his termination from employment was a First Amendment retaliation violation under federal law, as well as a violation of various provisions of state law. See Nixon v. City of Houston, 511 F.3d 494 (5th Cir. 2007). The Sheriff, as the defendant, moved for summary judgment, a legal process whereby a party asks a trial court to make a legal determination because there are no disputes with regards to the facts of the case. The Trial Court granted summary judgment in favor of the Sheriff and Mr. Wilson appealed.

March 16, 2017

Government Expropriates Land to Reroute Highway 105 in Louisiana, Landowners Compensated Fairly After Lawsuit

by Berniard Law Firm

tree-1494188-768x1024 When the government takes privately owned property to be used for the benefit of the public, it is called an expropriation. Federal and state law prohibit the government from taking private property without compensating the owner. The Louisiana Constitution provides that property shall not be taken or damaged by the State except for a public purpose and with just compensation paid to the owner of the private property. A landowner whose property is expropriated by the State is to be compensated so that he remains in the equivalent financial position he enjoyed before the taking. The following case provides a concrete example of such a situation.

Knoll & Dufour Lands and Glenn and Barbara Dauzert (Plaintiffs) brought a consolidated action against the Louisiana Department of Transportation (“DOTD”) alleging the amount paid for the expropriation of their properties was insufficient to cover the value of said property. The Trial Court awarded compensation and damages to each of the property owners and the DOTD appealed the decision. The Court of Appeal affirmed the Trial Court’s award of damages, improvements on the land expropriated, and additional damages. However, it also found that the Trial Court erred in its valuation of the property expropriated from Plaintiffs. Importantly, the Trial Court erred by relying on expert testimony as to the total value of the land, which simply added the value of the trees to the fair market value of the property. This form of valuation is an improper basis for determining the value of the property. Since the Trial Court record did not contain enough evidence to determine the value of the trees added to Plaintiff’s property, the Court of Appeal remanded the case to the Trial Court to allow the parties to present evidence as to how much the trees contributed to the total value of the land taken.

After a second trial, the Trial Court awarded Knoll & Dufour Lands $164,720.00, including $158,000.00 for the trees taken from a 0.533 acre tract of land that the DOTD expropriated for the construction of a new route for Highway 105 in Avoyelles Parish. In addition, the Trial Court awarded the Dauzerts $33,051.00, including $30,000.00 for trees taken from a 0.639 acre tract of land also expropriated by the government in rerouting the highway. In determining the compensation owed to the landowners for the added value of the trees the Trial Court heard from four expert witnesses: the real estate appraiser who did the original appraisal for the DOTD, a landscape horticulturist, an arborist and real estate agent, and Plaintiff’s real estate appraiser. Again, the DOTD appealed the decision of the Trial Court arguing that none of the expert testimony should have been admitted, except for the expert testimony offered by the DOTD, because it was irrelevant to the question before the Court.

March 15, 2017

Suicide Forecloses Survival Action But Leaves Open Claims by Succession Representative of Estate

by Berniard Law Firm

general-business-1241245-1024x582 When someone with a family and a business suddenly dies, sensitive estate issues arise and can often become complicated, especially if the decedent was in the midst of strained business negotiations or when the death was the result of a suicide. In these situations, it’s essential for surviving family members to hire a good attorney in order to keep a stressful situation from deteriorating further. The following case illustrates such a situation.

Chi Pham, a physician, became ill in 2012 and was unable to continue her Lafayette, Louisiana medical practice. Dr. Pham ran the practice through Chipham, a corporation she had formed, which owned the physical aspects of the business. On August 6, 2012, Chi Pham negotiated a non-binding Memorandum of Understanding with Southwest Medical Center Multi-Specialty Group (SWMG) that outlined a proposal for SWMG to purchase certain assets of Dr. Pham’s medical practice. The Memorandum also laid out the terms and conditions for the lease of her office building and the possibility of Dr. Pham resuming the practice as an employee of SWMG when she was sufficiently recovered. In conjunction with this Memorandum, Dr. Pham signed the First Medical Records Transfer Agreement, which transferred responsibility for Dr. Pham’s patient medical records to SWMG. Ultimately, negotiations between Dr. Pham and SWMG failed and the parties rescinded the First Medical Records Transfer Agreement. Approximately two months later, the parties signed the Second Medical Records Transfer Agreement.

Meanwhile, negotiations continued on the points outlined in the non-binding Memorandum of Understanding. These negotiations culminated in an offer that was sent to Dr. Pham, acting on behalf of Chipham. Dr. Pham committed suicide without accepting the offer. Following his wife’s death, Bau Pham tried to finalize the negotiations but was unable to come to an agreement with SWMG. SWMG formally discontinued the negotiations on April 29, 2013, and on May 2, 2013, Bau Pham dissolved Chipham.

March 13, 2017

In Personal Injury Case Out Of Lake Charles, Plaintiff’s Inconsistent Testimony Fails to Convince Court of Appeal

by Berniard Law Firm

out-of-place-1184032-1024x590 It is common for Louisiana residents who are injured due to another person’s negligence to seek financial compensation through a personal injury lawsuit. Typically, these types of lawsuits will pursue compensation to cover medical expenses that are incurred by the victim for the treatment of the injury they suffered, among other damages. That is exactly the approach that Destiny Guidry decided to take after she claimed that she was injured in an incident at a grocery store in Lake Charles back in 2011.

According to Ms. Guidry, she was injured on June 14, 2011, when she was struck by a stock cart that was loaded with canned goods. The stock cart was under the control of a store employee, Kenneth Wyant. Mr. Wyant did not deny that there was an incident in which he claimed he had to stop the stock cart suddenly, resulting in some cans potentially hitting Ms. Guidry on the leg. But, he did deny that Ms. Guidry was injured in any significant way. Ms. Guidry, on the other hand, claimed that she suffered a serious injury to her ankle in this incident, resulting in a trip to the emergency room four days later on June 18, 2011, and again on June 28, 2011. Then, in March of 2013, 21 months after the incident in the grocery store, Ms. Guidry ultimately had surgery on her ankle. Ms. Guidry filed a personal injury lawsuit against the grocery store and the store employee, Mr. Wyant. The case was tried before a jury.

The first question for the jury was whether the store employee, Mr. Wyant, was at fault for the incident that occurred at the grocery store on June 14, 2011. The jury answered “no” to this question, ending deliberations. Before the case was dismissed with prejudice, i.e., the claim was foreclosed from ever being brought in court again, Ms. Guidry asked the Trial Court for a “judgment notwithstanding the verdict.” This is a legal procedure whereby a party asks the court to enter a judgment that is different from the jury’s conclusion on the basis that the jury made a manifest error in reaching its conclusion. In this case, Ms. Guidry claimed that the manifest error was the jury’s finding that Mr. Wyant was not at fault for the incident on June 14, 2011, especially since Mr. Wyant had not denied that some type of incident had in fact occurred, which was supported by corroborating testimony. The Trial Court denied Ms. Guidry’s motion and she appealed to the Louisiana Third Circuit Court of Appeal.