Articles Posted in Civil Matter

The right to jury trial is a fundamental part of our government, enshrined in its own amendment to the Constitution. U.S. Const. Amend VII.   It is such a valued right that, while a party has the option to waive it, that waiver must be clear and obvious.  In fact, a party can only waive its right to a jury trial in one of two ways: by express declaration, or by failing to demand a jury trial within the required time. Bowles v. Bennett, 629 F.2d 1092 (5th Cir. 1980).  If the party successfully waives its right to trial, that right cannot be reclaimed.  Thus, it is extremely important that an attorney understand these rules and the ramifications of waiving this right.

In a recent case before the U.S. Court of Appeals for the Fifth Circuit, it was the trial court that was apparently unclear on when a jury trial is actually waived by a party.  Both the plaintiffs, Allstate Insurance Company and its subsidiaries (“Allstate”) and the defendants, Community Health Center, Inc. and related defendants (“Community”) requested at different times to have a jury trial.  After discovery, Allstate filed a motion for summary judgment, which was granted.  Then the parties agreed that the only issue for trial was damages.  In response, Allstate waived its right to a jury, but only with respect to damages, the issue it thought was the only one left on the table.

It was at this point, however, that the district court found that there was a lot of confusion amongst the parties as to what claims remained after the motion for summary judgment, and rescinded its earlier grant of summary judgment.  As a result, the court reinstated all claims and scheduled a new and full trial based on Allstate’s initial allegations.  

An  appeal is the legal system’s way of letting the losing side have one, or two, additional chances at making their case before the final bell rings.  The losing side can, and often does, argue for virtually every perceived problem or slight that occurred in the lower court proceedings.  But, this is also why appeals are generally only available after the trial or lower court proceedings have ended.  Of course, this being the law, there are exceptions to just about every rule.  It is critical, however, to have an attorney who knows the rules and their exceptions so that they are then capable of making savvy choices on how and when to appeal.

This issue came up from a seemingly benign error made in the initial filing of a lawsuit in Louisiana state court by Lenetra Jefferson (“Jefferson”) against the Charity School of Nursing at Delgado Community College (“Delgado”), a New Orleans public community college.  In her suit, she alleged Delgado racially discriminated against her while she was an employee at the school.  As is required for all lawsuits, Jefferson had to name the defendant, here Delgado, and then serve that defendant so that they are on official notice of a lawsuit being filed against them. The problems began when Jefferson identified the school as an agency or instrumentality of State of Louisiana.  Jefferson attempted to serve her lawsuit on Delgado’s Chancellor, but ended up serving the Louisiana Attorney General, as the representative of the state for litigation.    

The Attorney General first removed the lawsuit from state court to federal court.  Once it had removed the case, the Attorney General moved to have the entire suit dismissed on the grounds that Jefferson’s complaint did not specifically name the state as a defendant and the state was not a proper defendant.  At the trial court, the Attorney General argued that Jefferson essentially filed her suit against the school, and not any Louisiana state agency.  The Attorney General also declined to enlighten the trial court or Jefferson as to who was the proper defendant. (Spoiler alert:  she should have named the Board of Supervisors of Community and Technical Colleges and she should have served the Board’s Chairman, who is its agent for service of process).  

Litigation is very complicated, particularly amongst the weeds of appeals and motions. This is illustrated very well in a case out of the Louisiana state Fifth Circuit Court of Appeal.  One of the most important things it teaches is that it is invaluable to have a knowledgeable attorney who is familiar with summary judgments and appeals so the correct motions and pleadings can be filed on behalf of the client.

The case started as a seemingly straightforward personal injury case.  The plaintiff, Candace Gray, was injured when she fell in the parking lot owned by the Marrero Land and Improvement Association Limited (“Marrero Land”).  She filed a lawsuit against Marrero Land alleging damages from her injury.  Through the course of discovery and depositions, Marrero Land’s attorneys filed a motion for summary judgment.  The motion for summary judgment is used to assert that there is no issue of material fact that needs to be determined, only issues of law which can be adjudicated by the court.  Marrero Land argued that Ms. Gray was going to be unable to meet her burden of proof and the case should be determined in favor of Marrero Land.  The trial court denied the motion for summary judgment, finding that there were some genuine issues of fact.  

In its written judgment, the trial court noted that the decision was final and appealable prompting Marrero Land to file an appeal of the denial of its motion.  Before addressing the merits of Marrero Land’s appeal, the appellate court pointed out that it always has the duty to examine subject matter jurisdiction even when the parties do not raise the issue.   In other words before hearing the issue at hand, the appellate court must first determine whether the court has the right to hear the case at all.   

When bringing a case for damages for wrongful termination due to age discrimination, a former employee must demonstrate that despite their age (or other considerations), they are capable of performing the duties associated with the position from which they had been fired. Failure to do so may result in a dismissal of the lawsuit.

In Kenner, Louisiana, a seventy-four year old named Mrs. Aderholt was hired by Metro Security to work as a gatehouse attendant at Gabriel Properties. Six years later, Aderholt was fired from her job, at the age of eighty. Aderholt subsequently filed a lawsuit, seeking damages for retaliatory firing based on age discrimination.

According to Aderholt, she had faced discrimination due to her age throughout the six years she worked for Gabriel Properties. The discrimination culminated in the owner of the company, Lloyd Jarreau, told Aderholt that she was “too old” for this kind of work. According to Aderholt, she complained about these comments to management, and as a result was fired from her job in retaliation.

If  you believe you have been misrepresented by an attorney, or that your legal counsel in any way acted wrongfully or neglected your legal needs, you may have a cause of action for legal malpractice. However, the time limit for when you may bring such an action to court is relatively short, and very strictly enforced, so it is important to retain new counsel as soon as the legal malpractice occurs or as soon as you first learn about it, so that you do not miss your window of opportunity to bring a malpractice claim. The following case demonstrates the problems that can arise when you wait too long to bring a legal malpractice claim before the court.

At the foundation of this lawsuit, out of the Louisiana Fourth Circuit Court of Appeals, George and Bryan Burch (“the Burches”) owed Mr. Barrasso and Mr. Roberts, their attorneys in a family law dispute, unpaid fees and costs arising from the representation of the Burches in the family law case. In response to the attorneys’ petitions to reclaim those unpaid costs, the Burches filed a reconventional demand, which alleged that Barrasso and Roberts had failed to adequately represent their interests, and had engaged in fraudulent activity like excessive billing and overstating the effort they spent on the case. In response to that petition for reconventional demand, Barrasso filed for an exception of res judicata and peremption, claiming the Burches’ causes of action were time-barred by the one-year limit for bringing a legal malpractice action in Louisiana. The Burches then filed a separate action against Roberts, claiming instead that they had a right of action under the Louisiana Unfair Trade Practices and Consumer Protection Act (“LUTPA”). They relied on many of the same facts, including the claims about fraudulent overbilling and overstating effort spent on the case. Roberts then filed for exceptions of peremption and res judicator, because of the same one-year limit for malpractice claims, and because the claims at issue against Roberts had already been litigated in the Burches’ reconventional demand response against Barrasso. Res judicata applies to cases where the legal issues brought have already been litigated to finality—here, Roberts argued res judicata applied to the Burches’ claims against him because those claims had already been litigated when they were brought against Barrasso earlier. The trial court agreed, and granted both the exceptions for peremption and res judicata. The Burches then appealed.

Appellate Court Holding

Be  careful what your getting into when you attend a timeshare presentation. While you may get a “free” vacation for sitting through the sales pitch, you could be getting into more trouble then it is worth. This was the case for over one hundred purchasers of timeshares who bought from Festiva Resorts, LLC and Festiva Development Group, LLC. Festiva held sales presentations in New Orleans, Louisiana, for points based timeshares memberships.

In two separate suits, plaintiffs sought for damages alleging they were subjected to high pressure sales tactics coercing the buyers into signing purchasing documents without reading them. Moreover, the plaintiffs stated in their petitions they were not provided with documents as described in the selling documents. Essentially, the claim boiled down to being the victims of unfair and deceptive practices on the part of Festiva. The group of people seek for the contracts to be declared null and void, in addition to money back for all of the charges they had incurred and reversal of negative actions taken by creditors.

Festiva argued to the court that the cases did not satisfy the requirements for joinder and therefore the trial court erred in not requiring each case be tried individually. The law applying to joinder in Louisiana is “Two or more parties may be joined in the same suit, either as plaintiffs or as defendants, if: (1) There is a community of interest between the parties joined; (2) Each of the actions cumulated is within the jurisdiction of the court and is brought in the proper venue; and (3) All of the actions cumulated are mutually consistent and employ the same form of procedure.” La. C.C.P art. 463. Essentially if the parties contain similar community of interest, venue where the harm took place, and procedure by which the harm occurred it is proper for the court to allow the cases to be joined together.