Civil Matter

July 30, 2016

Louisiana Court of Appeal finds buyer breached contract by not precisely adhering to contractual terms when he agreed to buy real estate before inspecting its flood elevation

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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.

July 29, 2016

Court of Appeal upholds eviction in Chalmette, Louisiana in an unclear rent-to-own contract

by Berniard Law Firm

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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.

July 24, 2016

Louisiana Fourth Circuit Denies an Exception of Prescription Based on Procedural Nuances.

by Berniard Law Firm

hour-glass-1307106-1-1024x768 In legal matters, there is generally always a time frame in which certain actions must be taken. Failing to bring an action in the allotted time may bar a person from filing a lawsuit. Once the specified time period has passed, the plaintiff is no longer able to file a lawsuit or claim. In other states this time limitation is called the statute of limitations; however, in Louisiana, it is called Prescription. Usually, the prescriptive period for filing a lawsuit is one year. La. C.C. art. 3492. Additionally, if a lawsuit is filed but is not filed according to certain procedural guidelines, the plaintiff may also be barred from going forward with their lawsuit, irrespective of whether it was filed within the one year prescriptive period. In either instance, opposing council may file an Exception of Prescription.

An Exception of Prescription is a motion which asks the court to dismiss the lawsuit due to not bringing the lawsuit timely or failing to abide by procedural rules. The failure to follow procedural guidelines, became the center of the controversy in the Fourth Circuit case of Richard Lewis v. Robert Constigan Flowers and Nationwide Mutual Insurance Company. Lewis v. Costigan, et al. 2015.

In this Orleans Parish case, the initial controversy arose from a vehicle collision between Robert Lewis and Robert Costigan Flowers. Mr. Lewis filed a Petition for Damages on April 21, 2014 via facsimile. According to Mr. Lewis’ counsel, the documents were sent to the Clerk of Court on April 25, 2014. However, on May 1, 2014, ten days after the facsimile transmission, the Clerk of Court stamped the original documents when they processed the filing fees.

July 20, 2016

Defendant in Superdome Personal Injury Case Not Let Off the Hook So Easily

by Berniard Law Firm

IMG_1314-1024x768 When a Louisiana resident is injured, she should consider filing a lawsuit against the person, group, or organization whose negligent or intentional acts were a proximate cause of the injury. However many potential plaintiffs do not realize that there may be several other persons and entities, not readily perceptible to the layman, who could be added as defendants and help ensure the plaintiff’s just compensation. Additional defendants can be extremely helpful when a plaintiff is going after substantial compensation because there will be more individuals to help pay out the sum should one or more parties be unable to pay a judgment due to bankruptcy or some other issue. Accordingly when Kenneth Truxillo was injured while attending pre-game festivities at Champions Square, the outdoor entertainment area bordering the Mercedes Benz Superdome, he did not just seek compensation from the owners of the Superdome but added several other defendants that he believed shared responsibility for his injuries.

According to Mr. Truxillo, while he was attending pre-game festivities at Champions Square before a home football game he was struck in the head by a large stucco column that had fallen over. He sustained several injuries and sought damages from several defendants, claiming that the stucco column that struck him created an unreasonably dangerous condition. The defendants included: The Louisiana Stadium and Exposition District, owners of the Superdome; SMG, the company that operates the Superdome and the property on which it is located; Mardi Gras Productions, the company that owned the stucco column that allegedly fell onto Mr. Truxillo; and Centerplate, a food and beverage service provider with whom Mardi Gras Productions contracted and provided the stucco column on the day of the alleged event.

In trial court, Mardi Gras Productions filed a motion for summary judgment, arguing that it was not liable for Mr. Truxillo’s injuries because it neither had custody, control, or garde over the area in which the stucco column struck Mr. Truxillo, nor over the column itself. Summary judgment is a ruling made by a judge in a court of law, and is granted only if the pleadings, depositions, answers to interrogatories, and admissions together with affidavits, if any, admitted for the purposes of the motion for summary judgment show that there is no genuine issue as to material fact and that the moving party is entitled to judgment as a matter of law.

July 12, 2016

First Circuit Affirms Dismissal of Lawsuit Seeking Injunction Against CVS Pharmacies From Selling Expired OTC Medication

by Berniard Law Firm

pills-tablets-2-1524560-850x1024 When a person is harmed or comes across what that person sees as an injustice, that person may feel that the only way out is through the courts. However, someone seeking help in the courts must be sure that the problem is one that a court can help. An injunction is a method by which someone can ask a court to order a person or company to either do something or stop doing something. Usually it is required in Louisiana that the party requesting an injunction be at risk of irreparable harm or harm that cannot be undone by the payment of money. This does not apply, though, if the action to be stopped is illegal to begin with.

The First Circuit Court of Appeals recently reaffirmed the requirements for obtaining strong means of relief such as injunctions or class actions. Ms. Jean Cooper purchased some over-the-counter allergy medicine at a CVS pharmacy in Washington Parish, Louisiana. Upon discovering that the medication she purchased had already expired, she sued CVS as a company on the basis that the court should prevent the stores from selling expired medication because it could cause health risks. She asked the court for an injunction on behalf of herself, and a class action injunction on behalf of others that may have purchased the expired medications. CVS argued in return that she had not actually been harmed by the expired product and that she was not in risk at harm because she had not used the medication and later declared she would no longer purchase medications in CVS stores.

From these facts, CVS argued that there was no irreparable injury. In response, Ms. Cooper claimed that she did not need to prove injury since federal law prohibited the selling of expired drugs. She pointed to 21 U.S.C.A 331, the provision of the Food, Drug, and Cosmetic Act that makes it illegal to sell “adulterated” medications. An adulterated medication is one which has been produced in such a way that it might be harmful. See 21 U.S.C.A. Section 35l(a)(2)(B). She claimed that although this law concerned the manufacturing process, a memo that had been written by the FDA in 1995 extended this definition to stores that sell expired medications. She also presented evidence that another person had found expired medications and baby formula for sale at 63 different CVS locations. This was meant to prove irreparable injury under the idea that all of the CVS stores were selling expired medications.

July 11, 2016

Louisiana Lawsuit Illustrates the Importance of Timing for Medical Malpractice Claims

by Berniard Law Firm

hourglass-1543596-1024x768 In initiating a lawsuit, timing is critical. In Louisiana, the doctrine of prescription bars a claimant’s legal right of recovery when he or she fails to exercise it within a given period of time. This doctrine functions somewhat similarly to what is known as the “statutes of limitations” in other U.S. states. However, certain statutory provisions “stop-the-clock” so to speak, and suspend the time within which a lawsuit must be brought. This entails precise timing calculations for determining prescriptive period or “deadline” for bringing a claim. Failure to comply with these deadlines means no recovery, as demonstrated by a recent opinion of Louisiana Fifth Circuit Court of Appeal in a lawsuit asserting medical malpractice claims.

On August 3, 2012, Mrs. ABC was admitted to a hospital in New Orleans (“Hospital”). Upon admission, Nurse Practitioner CP took ABCs’ intake history and performed a physical under the guidance of Dr. PP. Upon initial inspection ABC had no signs of bed sores when she entered the Hospital. However, she quickly developed bedsores during her stay at the hospital. Her skin condition gradually deteriorated, leading to her to expire on October 24, 2012.

On October 16, 2013, ABCs’ children – the plaintiff/appellants – Kathy Maestri and Kurt C. Burgenthal filed a claim with the fund in Louisiana that is set up to initially review medical malpractice cases (“LPCF”) claiming that ABCs’ bed sores and demise were caused by the by both the Hosptial, Dr. PP, and Nurse CP. On October 30, 2013 the LPCF notified Ms. Maestri and Mr. Burgenthal by letter that Nurse CP did not fit the definitions of a healthcare provider under the Louisiana Laws that govern medical malpractice claims (“LAMMA”). (See Louisiana Medical Malpractice Act Definitions)

July 1, 2016

Low Speed Automobile Accident in Monroe Louisiana Discusses Concept of “Relevant Evidence”

by Berniard Law Firm

car-accident-1446905 Being involved in an automobile accident or sustaining a serious injury can be very overwhelming. This is especially true if the accident was someone else’s fault. Although one may be disoriented after an automobile accident, it is pertinent that he/she follows all the necessary steps to ensure that the accident or injury is well documented. One’s first instinct may be to try to minimize the gravity of the situation; however, it is important to understand that a personal injury may have been sustained even if the symptoms are not immediately visible. One never knows if they will have a problem down the road from an injury sustained from the automobile accident, and therefore, a great attorney knows that their client will need proof and documentation to prove that the problem stems directly from the said automobile accident.

Part of that documentation includes what will be considered “relevant evidence” and how to avoid using expert witnesses who may become impeached at trial. The following case out of Monroe Louisiana discusses the standards courts use as the gatekeepers of allowable information that can be used at trial. On July 20, 2010, Michael W. Pratt (“Mr. Pratt”) was hit from behind by Brett O. Culpepper (“Mr. Culpepper”) while stopped at a red light on Desiard Street in Monroe. Immediately following the accident, it is alleged that Mr. Pratt stated to the investigating officer that he was uninjured and did not require medical attention. However, sometime after the accident Mr. Pratt begin to see a chiropractor for the various injuries he alleged were caused by the accident.

In July 2011, Mr. Pratt filed a lawsuit against Mr. Culpepper and his insurer for a variety of damages (i.e., past and future pain and suffering, medical expenses, loss of earnings, disability, etc.) associated with the alleged substantial injuries he sustained to his back, head, and neck in the aforementioned accident. It was disputed amongst the parties as to (1) whether the force of the collision was significant enough to cause the alleged injuries and (2) whether or not the alleged injuries were from this particular automobile accident. In 2014 the lawsuit was tried before a jury. At the conclusion of the trial the jury found that Mr. Pratt failed to prove by a preponderance of the evidence that the accident caused him to suffer physical injuries. The plaintiff then appealed the juries verdict. Mr. Pratt argued before the appeals court that that the trial court’s allowance of the records into evidence of his chiropractor’s suspension by the Louisiana State Board of Chiropratic Examiners was an error that should cause the jury’s verdict to be overturned.

June 30, 2016

Can a Second Trial Occur if Newly Found Witnesses Show Up After the First Trial?

by Berniard Law Firm

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A trial is supposed to finalize your case, it should be the beginning of the end of the litigation process. However, after a judgment is rendered the Louisiana Code of Civil Procedure allows for a Motion for a New Trial which can allow for a second bite at the apple. For the most part those motions are denied and thus begins the appellate process. So what happens if after the conclusion of the first trial newly found witnesses show up? Will the Court allow a second trial and can those witnesses testify at that second proceeding? A recent case arising out of Abbeville Louisiana considers those questions and gives some guidance as to what is allowed under Louisiana trial procedures.

The original lawsuit arose from a boundary dispute between Bernard M. Boudreaux and family against Paul Cummings, all landowners of adjacent tracts of land in Vermilion Parish. In a possessory action and petition for injunctive relief and damages, the Boudreauxs alleged that they had peacefully possessed their property uninterrupted for over 60 years. However, the Boudreauxs claimed that possession was disturbed when Mr. Cummings drove large pipes into their property. There was some dispute also over whether the Boudreauxs had acquired property beyond the established section line boundary, per their alleged thirty-year acquisitive prescription.

At an original hearing, the trial court granted the Boudreauxs a preliminary injunction and established one particular survey as setting the boundaries of the Boudreaux’s property. Mr. Cummings then converted the matter into a petitory action, and after a trial on the merits, the trial court held instead that the Boudreauxs had not properly established the boundary line they sought possession of, and the trial court then set the boundary along the original title boundary. The Boudreauxs then filed a motion for a new trial. The Boudreauxs sought the new trial to permit them to enter two new witnesses, who the Boudreauxs alleged could not have been obtained by due diligence during the original trial. The new trial motion was granted, and after the second trial the trial court arrived at the ultimate decision to find in favor of the Boudreaux’s interpretation of the boundary line.

June 29, 2016

Dispute Over Donation of West Monroe Property Emphasizes the Importance of Proper Service and Citation

by Berniard Law Firm

old-house-1224719-1024x811 Under Louisiana civil procedure, it is well settled that “proper citation is the cornerstone of all actions.” If a party to an action is not served with process in the manner required by law, the result of that action is considered null and void. This requirement is intended to ensure that the defendant in a lawsuit is fully informed of the existence and subject of the plaintiff’s complaint. The concept of proper service is so essential, in fact, that even a defendant’s actual knowledge of a legal action cannot correct a defective citation and service of process. Therefore, a key skill of the attorney that you hire to represent you is a thorough understanding of the various and sometimes complex rules that control how process must be served on the defendant(s) in your lawsuit.

An attorney’s command of the requirements of process service is especially crucial in disputes over a deceased person’s property. The following case of Martin v. Martin in the Second Circuit Court of Appeal is instructive. In that case, two of the adult children of John Martin, Sr. objected to his donation of his home in West Monroe to his third child, John Martin, Jr. By the time the lawsuit was filed, however, both John Sr. and John Jr. had passed away, leaving the title to the home in the name of John Jr.’s widow, Sharon Martin. The Martin siblings filed their action against Sharon personally and against the “unopened succession of John Alexander Martin, Jr.” for which no succession representative (also known as an executor) had yet been identified. Nevertheless, Sharon Martin answered “individually and as testimony [sic] legatee,” despite never being identified as the succession representative of her late husband’s estate. From there, the trial court considered the Martin siblings’ objections to John Sr.’s gift, including that John Sr. was not of sound mind and lacked the capacity to make the gift, and that the gift should be declared invalid because it left John Sr. without means of support. Ultimately, the trial court found in favor of the siblings.

On appeal, however, the Second Circuit focused its attention on a more fundamental question: whether Sharon Martin had standing to represent the unopened succession of her late husband. Under state law, one cannot bring an action against an unopened succession for which no representative has been appointed. See Minden Bank & Trust Co. v. Childs, 658 So. 2d 216 – La: Court of Appeals, 2nd Circuit 1995. Accordingly, the court reviewed the formal requirements in Louisiana for appointing a succession representative — including furnishing a security and taking the oath of office — after which the clerk issues the representative letters of administration. And, although the law provides a specific procedure for filing a suit against a deceased person for whom no succession representative has been appointed, ( see La. C.C.P. art. 5091) the Martin siblings did not make use of it. Therefore, the court concluded, there was “no showing that Sharon was ever appointed as the succession representative,” as there was “no proof in this record that she had been recognized by any court of this state as the succession representative.”

June 27, 2016

Redhibition Lawsuit Against Monroe Automobile Dealer Dismissed Due to Prescription

by Berniard Law Firm

old-truck-1451289-1024x768 Buying a car is a huge endeavor for most people. Most of the time we do our due diligence and make sure we have a fair understanding of what we are purchasing. However, only so much information is under of our control. When buying a used car, we are often forced to go off of what the seller tells us about the vehicle. This can be nerve racking for many. It’s safe to say that the nerves tend to lessen when we are buying a used car from a certified pre-owned dealership, and the car is under warranty. Unfortunately, for two Louisiana men, a truck under warranty purchased from a reputable dealership caused more problems than were conceivable.

In March of 2005, Barnaby Martinez bought a 2004 Ford F-250 truck. In 2008, he began to experience problems with the engine. The problems were so severe that Mr. Martinez alleged that at times have to use both his feet on the break in order to prevent hitting other vehicles. Mr. Martinez asked his brother-in-law David Leija, a mechanic, to take the truck to the Ford Dealer. In July of 2008, Mr. Leija took the truck to Hixson Autoplex of Monroe.

Hixon replaced the EGR valve and injector on the truck and informed Mr. Leija that the problem was fixed. However, 5000 miles later, the same problem came about. Mr. Martinez continued to bring the truck to Hixon several times. He was told that the warranty would take care of the repairs. Hixon kept the truck days, weeks, and even a month at a time. After getting fed up with the truck and its issues, Mr. Martinez sold the truck to Mr. Leija, who was fully aware of the truck’s problems. In 2012, Hixon informed Mr. Leija that they could not fix the problem, and that because the truck was out of warranty, the cost of repairs was $3000. Mr. Leija never took the truck back to Hixon.