Litigation

June 17, 2019

Louisiana’s First Circuit Court of Appeal Raises Its Own Peremptory Objection Due to No Cause of Action

court-fez-morocco-1235115-1024x768 In order to prevail in a lawsuit, the plaintiff must have a “cause of action,” which is a theory of law supported by facts that the court can recognize as a path to providing the plaintiff a remedy. At trial, a defendant may raise a peremptory exception — essentially an argument that the court cannot help the plaintiff with his or her problem — if the plaintiff’s petition does not allege facts that support the cause of action.

In March of 2005, John Rombach resigned from his position in Baton Rouge as fiscal officer for the State of Louisiana. Rombach’s job was to analyze the financial effects of proposed legislation on the government, including tax revenue. He claimed that he was so good at his work that he made enemies of some of the officials whose legislation he recommended be rejected due to their high cost. He further claimed that these opponents attempted to have him removed from office on the basis of supposed inappropriate payments he made to himself.

Rombach found himself before the Louisiana Board of Ethics in 2010. After the Board of Ethics ultimately dismissed all complaints against Rombach, he filed a lawsuit for defamation, malicious prosecution, and abuse of process against the “opponent” state officials who he believed filed the ethics complaints that led to the Board’s investigation. The defendants filed peremptory exceptions, claiming that the facts alleged by Rombach did not support a theory of law that would permit the court to award Rombach damages. Though the trial court denied these peremptory objections, it nevertheless dismissed the case. Rombach appealed to Louisiana’s First Circuit Court of Appeal.

June 11, 2019

Federal Court Compels New Orleans Glass Company to Arbitrate in Construction Dispute

by Berniard Law Firm

architecture-2-1446689-1024x681 It really does go without saying, but lawsuits tend to progress slowly. Delays abound and the realities of finite court resources mean that lawsuits can take years to complete. As an alternative to using this system, some parties will agree to arbitrate disputes. Arbitration takes place outside the court system before a contractually agreed upon third party who hears evidence and renders a final decision (much like a judge). Although it is sometimes successful, arbitration can often result in court litigation anyway. After a dispute arose over the quality of some condo construction in Biloxi, Mississippi, the New Orleans Glass Company attempted to litigate rather than arbitrate.

The New Orleans Glass Company (“NOG”) was a subcontractor for the Roy Anderson Corporation (“RAC”) on a project building condos in Mississippi. The parties executed a subcontract which required any subcontractors to participate in arbitration proceedings between RAC and a third-party when the subcontractor had claims against RAC arising out of the same general subject matter as the already-pending proceeding. NOG interpreted the contractual provisions to mean that arbitration was only required in regards to that third-party and not for disputes between NOG and RAC.

Predictably, a dispute did arise between RAC, the condo developer, and the condo owner’s association over the quality of the construction. Developer and owners initiated arbitration proceedings. RAC determined that many of the claims for damages involved work performed by subcontractors and subsequently filed a demand requiring NOG to participate in the arbitration proceedings. NOG filed a complaint before the United States District Court for the Southern District of Mississippi requesting the District Court to issue a judgment stating that NOG and RAC did not agree to arbitrate but to litigate.

June 7, 2019

She Snoozed, She Lost: Time-Barred Personal Injury Claims in Louisiana

by Berniard Law Firm

take-your-time-1316969-1024x681 No one wants to think about how to find a good lawyer or whether they should file a lawsuit after they’ve been injured. Most likely, they are preoccupied with trying to heal. But it is critical to keep in mind that many claims may be time-barred, and a lawsuit cannot be filed after a certain amount of time has passed. An injured party must get one’s affairs in order quickly and decide whether they should sue a potentially negligent party, because there may be a narrow time window in which to file a lawsuit.

Mary Beauchamp claims that she was injured by a piece of merchandise which fell from the shelf of a local Salvation Army thrift store on April 26, 2010. Unfortunately, she did not file her lawsuit for damages until November of 2013, over two and a half years after the incident. Louisiana acknowledges that some actions are subject to liberative prescription, which means a claim is barred because of the amount of time that has passed since the incident occurred. La. C.C. art. 3447. Other states refer to this as a statute of limitations. In actions such as Ms. Beauchamp’s, the liberative prescription period is one year. She clearly exceeded that by over a year and a half. However, there is case law which provides the plaintiff with an opportunity to show why a lawsuit wasn’t filed in time, and the prescriptive period will be interrupted or suspended. See LaForte v. Gulf Island Fabrication, Inc., 65 So. 3d 182, 185 (La. Ct. App. 2011). This is a means of stopping the clock, sometimes called “tolling.” The Louisiana First Circuit Court of Appeal heard Ms. Beauchamp’s appeal after the trial court found her complaint to be prescribed, or foreclosed from continuing.

The Court of Appeal mentioned that Ms. Beauchamp had filed a complaint on April 25, 2011, just under a year from the incident and an event which could potentially aid her in suspending the prescriptive period. But neither Ms. Beauchamp nor the Salvation Army requested the court to take judicial notice of the prior lawsuit so it could not consider this factor in its decision. Also, Ms. Beauchamp refers to exhibits in her appeal, but no exhibits were offered into evidence at the trial level. The Court of Appeal is unable to review any evidence, not in the record at the trial level. If Ms. Beauchamp had a case for interrupting the prescriptive period, she did not make it visible to the appellate court. This mistake turned out to be costly.

June 1, 2019

Blood Test on Former Shreveport Police Officer Ruled Constitutional

by Berniard Law Firm

chemistry-lab-2-1494465-1024x768 Americans value their privacy. Yet in certain contexts, privacy is not absolute. For instance, an employer may order an employee to get a blood test if pertinent to a work-related incident, even if that employer is the government itself.

The Shreveport Police Chief gave such an order when the department received a complaint that one of its officers was intoxicated. Pat Hensley, the officer in question, was found by fellow officers driving in a state of intoxication. His slurred speech and inability to perform basic cognitive and physical tasks prompted the officers to arrest him for Driving While Intoxicated. While in custody, Hensley underwent a blood test at the order of the Shreveport Police Chief. However, there was no warrant for the blood test. The blood test was positive for alcohol in Hensley’s bloodstream. Hensley sued the City of Shreveport and the Police Chief for the warrantless blood test. He argued in the United States District Court that the warrantless blood test was a violation of his Fourth Amendment rights and his rights under the Louisiana State Constitution. The specific rights Hensley claimed the Police Chief and the City violated were the rights that protect citizens from unreasonable searches and seizures.

The Fourth Amendment states that the Government shall not violate “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const. amend. IV. The Louisiana State Constitution also has a provision similar to the above. Though we may generally think of these laws to apply to the searches and seizures of external, physical objects, the United States Supreme Court has ruled that a blood test counts as a search. See Maryland v. King, 569 U.S. 435, 446 (2013).

May 29, 2019

New Orleans Construction Contractor Sues Private Investigator Over Prison Plea Deal

by Berniard Law Firm

writing-kiddo-1432496-1024x683 The worst thing that could happen if you are in a bad situation is for that situation to get worse. A New Orleans, Louisiana, resident found himself in that exact scenario when he was in legal trouble and subsequently found himself in even deeper legal trouble.

MT, the defendant, owned with his partners, a construction contracting company, Garner Services. When MT was the Chief Operating Officer, he and his brother-in-law, DF, created fictitious invoices for work never performed, amounting to $925,000 to a company that MT himself controlled.

After his fraud was discovered, MT was criminally charged with conspiracy to commit mail fraud, which he pled guilty to in exchange for no additional charges filed. The Government also informed MT that he would be indicted for concealing financial information to block the forfeiture of certain assets. Before the plea deal was signed, MT hired a private investigator, Tim Wilson, who spoke with two of the Assistant United States Attorney’s (“AUSAs”) for the Eastern District of Louisiana on MT’s behalf. Wilson stated the AUSAs promised not to execute on the forfeiture indictment. This “secret deal” was later contested by the AUSAs, who denied having made such a promise.

May 27, 2019

Surviving Spouse Loses Fight with First Wife Over Provisions of “Clear and Unambiguous” Will in Louisiana

by Berniard Law Firm

old-book-1423004-1024x768 Many people think that if they make a will, the administration of their property after death will go smoothly, with no questions asked. This is not always the case. A Louisiana case out of Jefferson Parish dealt with one of these precarious situations.

After her husband, Anthony’s sudden death in 2005, Sharon Sylvester, found herself in a legal battle with Anthony’s first wife, Joyce Sylvester. Anthony’s will, which had been drafted four years before he married Sharon, stated, “Upon my death, after all just debts are paid, I leave and bequeath all things I may die possessed of to my four children, namely….”, and subsequently named the children of Anthony and Joyce. The will was never amended before Anthony passed away. Three weeks after Anthony’s death, Sharon filed a petition, containing a descriptive list of the assets of the estate and a copy of Anthony’s will, in Jefferson Parish.

Louisiana is a community property state. This means that property acquired during a valid marriage by either spouse or by both of them, is presumed to be community property that belongs to the “marital economic community.” On the death of one spouse, the surviving spouse gets half of the community property and the estate gets half. Property acquired before the marriage belongs to the spouse who acquired it.

May 26, 2019

Judgement Reversed in 16.6 Million Dollar Coushatta Tribe Contract Case

by Berniard Law Firm

men-shaking-hands-1024x683 A contract creates a level of trust between two businesses or individuals, but what happens when one individual fails to uphold their end of the bargain? Or worse yet, what happens when an individual purposefully misrepresents their ability to uphold their end of the bargain? These are issues the Louisiana Third Circuit Court of Appeal recently addressed in a lawsuit between Meyer & Associates, Inc. (“Meyer & Associates”) and the Coushatta Tribe of Louisiana.

The Coushatta Tribe of Louisiana is a federally recognized Indian tribe composed of an elected four-member Tribal Council and a separately elected Tribal Council spokesperson. The Tribe conducts all of its governmental and business matters from the offices in Allen Parish, Louisiana. In July 2001, the Tribe decided to enter into an agreement in order to better manage the Tribe’s casino facility in Kinder, Louisiana. The Coushatta Tribe agreed to enter into a consulting services contract with Meyer & Associates, a Louisiana corporation that provides professional engineering services to its clients.

In early 2002, the members of the Tribal Council and the vice president of Meyer & Associates, Richard Meyer, began discussions concerning the possibility to design and construct a facility for the casino’s general electricity, the individuals of the Coushatta Tribe, and potentially outside customers. Because Meyer’s & Associates did not have specific experience in this area, Mr. Meyer began assembling a team of experts to assist him. For the next several months, the project team began exploring the possibilities of developing the electric program. During the Tribal Council meeting on December 17, 2002, Mr. Meyer presented the most up-to-date study on the feasibility of the electrical project – this presentation gave the Tribal Council enough confidence to accept the project on the January 14, 2003 meeting. With this acceptance, a second agreement was written. This second agreement gave the Chairman of the Tribal Council the ability to negotiate and execute any new agreements with Meyer & Associates, and also stated that that the Tribe’s financial obligation to the project was $10,000,000 in addition to the $3,375,000 that was necessary for all the preliminary work.

May 24, 2019

Ouachita Parish Woman Denied Workers’ Compensation for Seeking Payment too Late

by Berniard Law Firm

time-s-slipping-away-2-1419474-683x1024 When an employee is injured on the job, workers’ compensation is often a faster and more efficient method to seek damages than other judicial remedies. Once a judgment is entered, it is important for the injured party to promptly collect damages because this judgment could prescribe, or no longer be enforceable.

Deborah Beebe was injured while working at Paul Eikert’s store in 2002. Two years later on November 16, 2004, a Worker’s Compensation Judge (“WCJ”) awarded Ms. Beebe damages of $7,666.25 in medical bills, $6,000 in penalties an attorney fees, and any future medical bills relating to the accident, all of which Mr. Eikert had to pay. Ms. Beebe waited until 2014 to seek payment from Mr. Eikert for these damages, of which Mr. Eikert was unaware. He filed to nullify the WCJ’s judgment on August 20, 2014, due to lack of notice. On September 4, Ms. Beebe filed an exception to his petition, one month later Mr. Eikert filed an opposition to her exception, Ms. Beebe then filed another exception, and on December 17, 2014, Mr. Eikert filed a motion arguing that the 2004 judgment had prescribed because ten years had passed.

Ms. Beebe filed a petition to revive her Worker’s Compensation judgment on January 7, 2015. In the alternative, she argued that her judgment was not a money judgment and thus needed no revival. The pertinent rule here is La. C.C. art. 3501 which states that “a money judgment rendered by a trial court of this state is prescribed by the lapse of ten years from its signing . . . .” La. C.C. art. 3501. Accordingly, Ms. Beebe argued that the judgment was not a money judgment (and thus the statute did not apply), while Mr. Eikert argued that it was a money judgment and thus had prescribed.

May 23, 2019

Southern University System President’s Lawsuit Dismissed in Baton Rouge on Res Judicata Claim

by Berniard Law Firm

writing-1238365-1024x768 Plaintiffs cannot litigate multiple lawsuits brought over the same cause of action. For example, if a company wrongfully terminates someone’s employment, the employee can traditionally bring only one lawsuit addressing this issue and not a second or third after a court decides the first. This barring is called res judicata. Former Southern University System President Dr. Ralph Slaughter’s lawsuit against the Board of Supervisors of Southern University A&M in Baton Rouge, Louisiana, was dismissed because of this bar.

Dr. Slaughter and the Board settled a case in 2007 where Dr. Slaughter was fired after bringing workplace sexual harassment claims in federal court. Dr. Slaughter then dropped these claims because the Board signed him to a two-year employment contract running from July 1, 2007, to June 30, 2009. The Board reserved the right to terminate his employment on or before April 1, 2009, and on March 27, 2009, The Board exercised this right, voting not to extend Dr. Slaughter’s employment past the contract’s expiration.

Dr. Slaughter brought his first lawsuit addressing this termination on April 2, 2009, in a Baton Rouge District Court. He claimed that his employment termination was void because the Board did not adhere to Open Meetings Law. The Board filed to dismiss for no cause of action, and Dr. Slaughter himself also filed a motion to dismiss, which the trial court granted with prejudice on May 26, 2009.

May 22, 2019

Interlocutory Order and Missed Deadline Ends Malpractice Lawsuit Against Rapides Regional Medical Center

by Berniard Law Firm

emergency-hospital-sign-1024x683 Deadlines matter. They matter in all areas of life, but in the legal world, missing a deadline can determine whether legal action will move forward or not. With every cause of action, there are time frames for filing claims and appeals and oftentimes—even in situations where recovery seems necessary or deserved—courts will dismiss cases filed outside these time frames. In a lawsuit against Rapides Regional Medical Center (Rapides Regional), Mrs. Susanna Duckering learned this lesson the hard way.

After being treated at Rapides Regional in August of 2011, Mrs. Duckering filed a complaint for medical malpractice. In response, Rapides Regional filed a Motion for Summary Judgment, a motion for judgment as a matter of law rather than on the merits. The basis for this motion was that Mrs. Duckering did not have any evidence that Rapides Regional diverted from the standard of care or caused her injury. The medical review panel for Rapides Regional supported this by stating there was no evidence of a breach to the applicable standard of care. Mrs. Duckering did not oppose this motion, did not provide evidence that opposed the motion, and did not come to the hearing. After the hearing, Ninth Judicial District Court for the Parish of Rapides granted the Motion for Summary Judgement and on February 9, 2015, Mrs. Duckering’s lawsuit was dismissed.

In response, Mrs. Duckering filed a Motion for a New Trial, believing a new trial was necessary since the Motion for Summary Judgement was granted by default all because her counsel did not have the hearing scheduled on his calendar, and missed the hearing due to this mistake. After a hearing on March 23, 2015, the Trial Court denied the Motion for a New Trial and Mrs. Duckering appealed this to the Court of Appeal for the Third Circuit.