Articles Posted in Civil Matter

The Court of Appeals in the Second Circuit of Louisiana recently took on a “case within a case.” This phrase is used in situations of legal malpractice against an attorney’s actions. For years a standard was set for these trials that required the client of the malpracticing attorney to prove the amount of damages by going through the original case they brought to the attorney. Jenkins v St. Paul Fire & Marine Insurance Co set forth a new standard.  Jenkins v. St. Paul Fire & Marine Ins. Co., 422 So. 2d 1109 – La: Supreme Court 1982.

In Jenkins the court decided that in situations where a plaintiff proves his prima facie case upon a showing that his former attorney is negligent (such as a showing that your attorney did not file your lawsuit in time) it makes more sense for the negligent attorney to carry the burden of overcoming the client’s accusations by proving they never could have won their original claim. Then the jury would be left with deciding causation and damages. Therefore, if the client can prove the attorney accepted the job and failed to timely assert the claim there is a prima facie case of negligence against the attorney. From here, the burden is on the negligent attorney to overcome the claim of legal malpractice.  To do this the negligent attorney will typically try to show that the client would have never won the lawsuit he was hired to pursue on their behalf.  Such a situation is shown in the facts below:

In May 2009 the Plaintiffs, suriving daughters of Brenda Noid, hired attorney Mason Oswalt for a medical malpractice/wrongful death claim arising from the death of their mother. On February 8, 2010 Oswalt filed the complaint naming a doctor, and St. Francis Medical Center as the Defendants. Oswalt received a letter dated February 18, 2010 from Patient’s Compensation Fund (“PCF”) saying Oswalt had until April 5, 2010 to pay a $300 filing fee. The payment was not done in time and the PCF notified Oswalt that the claim was not going to be considered. Oswalt sent a $300 check to PCF on May 6, 2010 asking that the Plaintiff’s claim be reinstated because the failure to pay was because of a clerical error. The PCF denied this request on May 12, 2010.

When the law is clear and unambiguous and its application does not lead to absurd consequences, then the law shall be applied as written and no further interpretation may be made in search of the intent of the legislature. If however there are multiple interpretations to a statute, the court will examine it in order to figure out what the legislative intent was behind it in hopes of clearing up any and all ambiguities. The Louisiana Fifth Circuit Court of Appeal was recently faced with the task of interpreting a statute in order to determine whether or not it was properly applied at the trial level. The particular piece of legislation at issue is Louisiana’s Code of Civl Procedure Article 971. The issue rose within the context of a lawsuit brought by Chris E. Yount against Douglas Handshoe for defamation and several other related claims in which Mr. Handshoe was granted a special motion to strike pursuant to Article 971 asserting that his speech was protected under the First Amendment.

The defamation itself arises from a series of posts and comments authored by Mr. Handshoe and codefendant Jacke E. Truitt on www.slabbed.org, which is owned and operated by Mr. Handshoe and his company New Slabbed Media, LLC. On February 13th 2014 Mr. Handshoe published a drawing authored by Mr. Yount’s 13 yr old son on www.slabbed.org which had been used in Mr. Yount’s prior divorce proceedings in the 24th Judicial District Court. The captions authored by Mr. Handshoe clearly identified the author as a minor child and the divorce proceedings the child was involved in. The trial court found Mr. Handshoe’s blog posts were protected by his right of free speech under the United States and Louisiana Constitutions. Thus granting Mr. Handshoe’s special motion to strike dismissing all of Mr. Younts claims. Mr. Yount then filed for an appeal of the trial court’s ruling to the Louisiana Fifth Circuit Court of Appeal. Mr. Yount on appeal argued that the trial court erred in application of Article 971 because he is a private figure and the claims arise out of comments made in connection to a private rather than public issue.

The appellate courts decision hinges on the interpretation of Article 971.  That code article can be interpreted so that the special motion to strike will apply to any and all statements made in connection with any issue under consideration by a government body or alternatively that it will apply only to statements made in connection with public issues under consideration by a government body. Because the statute can be interpreted in multiple ways with adverse effects and absurd consequences the appellate court examined the purpose of the law to determine which of the above meanings conforms to the true purpose of the legislature. The court identified Article 971 as Louisiana’s Anti-SLAPP (Strategic Lawsuit Against Public Participation) statute, lawsuits under this statute involve a civil complaint or counterclaim filed against non-governmental individuals because of their communications to a government body or electorate on an issue of some public interest. The special motion to strike was created to limit discovery, dismiss meritless claims quickly and award attorneys fees to the winning party regarding SLAPP claims.

Disputes between parties over a contract happen in the real world.  Even large sophisticated companies with legal departments and retained law firms have difficulty making air tight contracts that flow smoothly and are dispute free.

A company named 1100 South Jefferson Davis Parkway, LLC (South) was selling a property in New Orleans, Louisiana.  On November 28, 2008 South entered into an Agreement to Purchase the property (the Agreement) with Richard H. Williams (Williams) for $875,000.

The Agreement stipulated Williams had 30 days from the November 28, 2008 acceptance of South’s offer to inspect the property.  Williams was free to hire his own inspectors during this period, but was required to furnish the inspection reports on the property to South.  On December 18, 2008, Williams asked for an extension of an additional 30 days to inspect the property. South agreed to the extension and a new deadline for the completed inspections was set for January 19, 2009.

To many the ownership of a home is a major part of the American dream. Many who have bought a home in the past have been enticed by the possibility of turning basic rent payments into eventual ownership of a home.  If you do enter into this type of agreement with a landlord make sure the contract is clear and you uphold your obligations.

In September 2013, Adrienne Brown and Roger Brown, Jr. responded to an advertisement stating a property in Chalmette, Louisiana was available for rent or rent-own.  On September 26, 2013 the Browns entered into a contract with the owner, Ellis Keys for a rent-to-own agreement. The property was to be sold in the amount of $100,000 at $750 per month until “paid in full.” The Browns were also required to maintain the property and forward mail to Mr. Ellis.

The relationship soured quickly. In early April 2014 Mr. Keys began the process of evicting the Brown for nonpayment of rent, nonpayment of contractually required late fees and not forwarding mail addressed to him which caused him to lose money.  After Mr. Keys notified them, the Browns had five days to vacate the property for failing to pay rent under La. C.C.P. art. 4701.