Articles Posted in Litigation

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69-Email-03-03-19-1024x512Zoning issues can seemingly arise out of nowhere and affect the way you choose to use your property. It is important to stay up to date with local zoning ordinances and have a good lawyer to guide you with upcoming projects or changes that may be affected. It is equally important to also be aware of what happens when zoning changes do affect, and even cancel, these projects. The Fifth Circuit Court of Appeal for the State of Louisiana addressed this issue when a Terrytown, Louisiana property was rezoned by the Jefferson Parish Council on December 12, 2007.

The Berrys purchased two adjoining parcels of property in 1998 and 2000, consisting of over four acres of land located in the Elmwood Subdivision and on Behrman Highway along the west bank of Jefferson Parish. This property was zoned as a Multiple Use Corridor District (“MUCD”), allowing for diverse commercial use of the land. On October 13, 2006, the Berrys and Volunteers of America, Inc. (the “VOA”) entered a purchase agreement to develop the property into a high-density, multi-level housing facility for the elderly. While the VOA made preparations for the project, the Jefferson Parish Council executed a zoning and land use area study that covered 23.67 acres, including the property owned by the Berrys.

The VOA project came to a halt due to a moratorium, an order of postponement, on the issuance of building permits for the area within the study, as required by the Parish Code. When the study came to an end, the VOA project ended as well; the study concluded with the Parish Council changing the zoning of the front portion of the Berry property from MUCD to C-1 (Neighborhood Commercial District), and the rest of the property zoned as R-1A (Single-Family Residential). Though the zoning changes were consistent with the Parish’s 2003 Comprehensive Land Use Plan, they were inconsistent with the VOA project.

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61-Email-03-03-19-1024x680The loss of loved ones is never easy, especially when they are taken away in sudden, unexpected ways. Though there is no dollar value that can replace human beings, monetary damages are a form of recovery in cases of wrongful death. Sometimes the steps to that recovery can be difficult, especially when insurance is involved. This issue was explored in a wrongful death action brought to the Twenty-Ninth Judicial District Court in St. Charles Parish.

On May 26, 2013, a head-on collision with another vehicle killed Esther Centeno and her unborn fetus. On behalf of Esther’s minor daughter, Laylonie Polanco, Carlos Polanco—Laylonie’s father—filed a wrongful action against the driver of the other vehicle in the collision: Jennifer Englade. The action was also brought against Ms. Englade’s insurer, National Automotive Insurance Company (“National”).

National filed a motion for summary judgment, a motion for judgment as a matter of law when there is no genuine issue of material fact. La. C.C.P. art. 966 (2017). In the motion, National argued that Ms. Englade was not covered by National at the time of the accident because her automobile insurance policy was canceled on March 30, 2013, due to failure to pay for a premium. In support of the motion, National provided a declarations page of Ms. Englade’s policy, the notice of cancellation, and affidavits of “Preparation of Cancellation Notice” and “Mailing” dated March 18, 2013. The trial court granted the motion for summary judgment and Mr. Polanco appealed.

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40-post-photo-1024x683Do you ever wonder what happens if you get into an accident in a company vehicle when on your lunch break? Whether it is using the company car to pick up food or a quick stop at the mall to grab a birthday gift, most of us have had the thought cross our minds. A recent State of Louisiana First Circuit Court of Appeal (“the Court”) case dealt with this very issue.

Melvin Sharp and his work supervisor drove to a bank to cash their paychecks on their lunch break in Prairieville, Louisiana. Sharp and his supervisor were both employees of Ellis Electric Company (“Ellis Electric”) and used a company-owned truck to run the errand. In the bank parking lot, another vehicle hit Sharp and his supervisor in the company-owned truck. Sharp was not driving the truck at the time, his manager was.

Sharp brought a lawsuit against his co-passenger and work supervisor, as well as Ellis Electric and their liability insurance provider, United Fire, seeking compensation for injuries from the car accident. Ellis Electric and United Fire’s attorneys motioned for summary judgment, stating Sharp was in the course and scope of his employment, and accordingly, he could only receive workers’ compensation. Ellis Electric further stated it was company policy to allow workers to use company vehicles on their breaks for personal errands. Sharp countered, stating he was not in the course and scope of his employment because he was not driving the company vehicle, his manager was, and that he was entitled to seek additional damages.

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39-post-photo-1024x683Most customers do not expect to be hurt by store merchandise when they go shopping. Yet, each year dozens of individuals are injured due to “falling merchandise.” The following Louisiana First Circuit Court of Appeal (“the Court”) case is a perfect example of what happens when an individual seeks legal action for being injured by a store’s falling merchandise.

Darry Hughes and his co-worker sought to purchase a plastic storage bin from Home Depot for their East Baton Rouge office. Inside the store, Hughes was injured when he removed a plastic bin from a shelf using both hands and was unable to stop another bin behind it from falling onto his face. Hughes brought a lawsuit against Home Depot U.S.A. (“Home Depot”) for the injuries he sustained from the alleged incident on the grounds that the bin was unstably stored.

Home Depot motioned the trial court for summary judgment, claiming that Hughes could not prove he did not cause the bin to fall upon himself and that he lacked evidence to show Home Depot was negligent or caused the injury he received. To show their purported innocence, Home Depot called in a twelve-year employee of the company, who testified that in all of his time there he had never heard of or seen an incident report where a product had fallen from a shelf.

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vacancy-1232656-1024x768Ever feel like you have been wrongfully brought to court? If so, then what legal remedies do you have at your disposal? In Louisiana, the law provides a person who has wrongly been brought to court with a tort cause of action called abuse of process. A recent Fifth Circuit Louisiana Court of Appeal decision highlights some of the procedural and legal requirements for this lesser known tort.

The alleged “frivolous” lawsuit centers around an eviction lawsuit. Allicen and Kenneth Caluda filed an eviction lawsuit against Fifth Business, LLC (“Fifth Business”). In the lawsuit, the Caludas also added No Drama, LLC (“No Drama”) as a defendant. Nearly seven years after the eviction lawsuit, No Drama filed an abuse of process lawsuit. To prove an abuse of process claim, No Drama needed to prove 1) the Caludas sued No Drama for an improper purpose and 2) the Caludas engaged in improper conduct during the prosecution of the action. See Goldstein v. Serio, 496 So. 2d 412, 415 (La. Ct. App. 1986). No Drama alleged the Caludas improperly filed suit in order to hold the company financially liable for the couple’s lease dispute with Fifth Avenue. It also claimed that the cost of defending the lawsuit, after informing the couple of its independent status, forced it to halt operations. The Caludas’ countered, arguing that No Drama was prescribed from bringing the abuse of process claim because it failed to file the claim within the appropriate time period required by Louisiana law which, for an abuse of process claim, is one year. The trial court agreed with the Caludas, dismissing No Drama’s lawsuit. No Drama appealed the trial court’s ruling.

On appeal, No Drama argued that the prescription period never commenced because the underlying eviction case needed to be decided prior to it bringing the abuse of process lawsuit. No Drama also argued the prescription period was suspended because Caludas was committing a “continuous tort.” A continuous tort is an ongoing unlawful course of conduct that results in uninterrupted injury to the plaintiff. Crump v. Sabine River Auth., 737 So.2d 720, 728 (La. 1999). No Drama alleged the Caludas, by maintaining a wrongful lawsuit and causing ongoing financial injury, committed a continuous tort and therefore, the prescription period was suspended or tolled as a result.

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books-illustations-1489534-768x1024Labor contracts are often tricky and scary because potential employees generally find it difficult to negotiate with employers for terms favorable to them, while employers use standard contracts with terms potential employees don’t understand or aren’t used to seeing, which guarantee the employers a better deal.

The National Labor Relations Act (“NLRA”), whose purpose is to provide protection to employees from unfair labor practices of employers, provides that an employer commits an unfair labor practice when it coerces or prevents employees from engaging in their legal rights, including, but not limited to, the rights of employees to band together in a union or otherwise. A recent case out of the United States Fifth Circuit Court of Appeals (“the Court”) addressed this problem in a labor contract case between a retail gas station and its employee.

Murphy Oil Inc. (“Murphy Oil”) operates retail gas stations in many cities in the United States, but the following dispute takes place at the Calera, Alabama location. Sheila Hobson, upon starting employment with Murphy Oil, was required to sign a binding arbitration agreement—an agreement which prevented herself and other employees working at this location from settling any disputes with management by any means other than arbitration—a process which would require both employee and employer to meet with a professional mediator for all legal claims.

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shaking-hands-1240911-1024x768Leasing agreements often are complex and lengthy, especially in a commercial context. A common provision contained in most leasing agreements is an indemnity provision. An indemnity provision is a section in a leasing agreement that requires the leasee (the person who leases the property) to take responsibility for certain lawsuits involving the leased property. A recent decision from the Second Circuit Court of Appeal for Louisiana illustrates the power of an indemnity provision.

The case revolves around a leased commercial building located in Bastrop, Louisiana. The building’s owner, Hollis Charles Larche, entered into a leasing agreement with Paul Eikert. Mr. Eikert obtained the lease in order to open up a grocery store. Contained in the lease is a provision that stated that Mr. Larche would be held harmless for any damages or injuries caused by defects on the building’s premises.

A couple of years after entering into the lease agreement, an employee of Mr. Eikert’s grocery store, Deborah Beebe, was injured while on the job. Ms. Beebe sustained her injuries after she slipped on water that came from a leak in the building’s ceiling. Ms. Beebe filed a lawsuit against Mr. Larche claiming that Mr. Larche knew of the leaking ceiling and failed to take appropriate measures to fix the leak. Mr. Larche, citing the indemnity provision contained in the leasing agreement, argued that Mr. Eikert is responsible for any damages resulting from Ms. Beebe’s injury. Mr. Eikert never responded to Mr. Larche’s claim that the indemnity provision allocated responsibility of Ms. Beebe’s injuries to Mr. Eikert. The trial court agreed, granting a default judgment on the issue for Mr. Larche. A default judgment is a judgment that a court can grant if one side in a legal matter fails to take steps to resolve the legal controversy. The default judgment is granted to the side who did take steps to resolve the legal controversy, in this case, Mr. Larche.

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downtown-salt-lake-city-2-1446473-683x1024Buying a home is a complex and stressful process. Not only must a homebuyer make sure he or she has the required funds to purchase the home, but must also thoroughly check that the home is in good condition. Generally, determining the condition of a home is relatively easy. Under the law, a home-seller is obligated to disclose certain defects. Failure to do so can result in a lawsuit. A recent case from the United States Fifth Circuit Court of Appeals illustrates the legal repercussions that can befall a home-seller when he or she withholds certain deficiencies in the condition of the home.

The case centers around a home purchased in Bossier City, Louisiana. The home-purchaser, Britney N. Jones bought a foreclosed house from Wells Fargo Bank (“Wells Fargo”). After purchasing the house, Ms. Jones discovered that it contained mold. The mold was discovered after an environmental assessment of the property. The assessment was undertaken because Ms. Jones’s children had developed respiratory and other health issues.

After discovering that the home she purchased contained mold, Ms. Jones brought a lawsuit against Wells Fargo alleging claims of redhibition and fraud. In Louisiana, a seller warrants a buyer against redhibitory defects. For a defect to be considered redhibitory it must render the thing useless or diminish its value in such a way that it could be presumed that the buyer would have not bought it or would have bought it at a much lower price. La. C.C. art. 2520 (2016). Defects that a buyer either knew of or that were apparent are excluded from the warranty of redhibition. When a defect is concealed within a home’s structure it is considered unapparent. See Amend v. McCabe, 664 So. 2d 1183 (La. 1995).

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tenis-1571373-1920x1440-1024x768When bringing a personal injury lawsuit a plaintiff must prove that the defendant in the lawsuit caused the injury. Often, when an injury involves two parties, the question of who caused the injury has a relatively straightforward answer. However, problems arise when the circumstances surrounding the injury involve multiple parties. A recent case out of the Louisiana First Circuit Court of Appeal illustrates the complexity of proving who caused an injury when multiple parties are involved.

Plaintiff William Bourg, an employee of Shamrock Management LLC (“Shamrock”), a Houma, Louisiana company, was injured while helping move an aluminum generator cover. The cover, which weighed 2800 pounds, was delivered to Shamrock’s shop by Cajun Cutters, Inc (“Cajun Cutters”). Mr. Bourg and a Cajun Cutter’s employee, Russell Felio, attempted to move the generator cover into Shamrock’s shop. To facilitate the delivery of the generator cover, Mr. Felio decided to use a large forklift that he was unauthorized to use. While using the forklift, Mr. Felio accidentally flipped the generator cover on its side, which fell on Mr. Bourg’s left foot, crushing it. The injury required Mr. Bourg to undergo two surgeries.

Mr. Bourg sued both Cajun Cutters and Mr. Felio for his foot injury. In a personal injury lawsuit, the jury is required to determine who is at fault for the plaintiff’s injury and allocate a percentage of fault onto each party member, including the plaintiff. In Mr. Bourg’s case, the jury decided that Mr. Bourg and Shamrock were 90% at fault for the accident and that Cajun Cutters and Mr. Felio were 10% at fault. Mr. Bourg filed a motion for a judgment notwithstanding the verdict (“JNOV”). A JNOV is a procedural device where the trial court may correct a jury verdict by modifying the jury’s findings of fault or damages, or both. La. C.C.P. art. 1811 (2016). The trial court granted the JNOV and reallocated fault 50% to Bourg and Shamrock and 50% to Cajun Cutters and Mr. Felio. Cajun Cutters and Mr. Felio appealed the trial court’s decision.

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piggy-bank-1-1241054-1024x764Life insurance benefits can provide beneficiaries with the monetary needs they require. What is a life insurance policy? An insurance company agrees by contract to provide a lump-sum payment, called a death benefit, to the beneficiaries upon the insured’s death in exchange for premium payments. But what happens when the insured dies and the beneficiary encounter problems in getting paid? This case out of Concordia Parish explains entitlement to life insurance proceeds in Louisiana.

On October 16, 2012, Michael Burley and his brother William each purchased life insurance policies from New York Life Insurance Company (“New York Life”) and named the other as beneficiary. Mitch Ashmore, the insurance agent, filled out the application for the policy insuring William’s life and answered “No” to question 3(1) that asked if the applicant had been diagnosed, treated, tested positive for or been given medical advice for drug or alcohol use. In December 2012, the policy insuring William’s life became effective. On April 24, 2013, William died from a heart attack. Mr. Ashmore filed Mr. Burley’s claim for the policy proceeds. On October 14, 2013, New York Life sent a letter to Mr. Burley stating that the answer to question 3(1) should have been “Yes” because of William’s medical records and death certificate listed marijuana use. The letter also stated that New York Life’s normal procedure was to refund all premiums and void the policy. On January 30, 2014, New York Life sent Mr. Burley a check for the premiums.

Mr. Burley filed suit against New York Life seeking the $200,000 policy proceeds, as well as penalties and attorney fees. Mr. Burley filed a Motion for Default Judgment because of New York Life’s failure to Answer. The trial court awarded a default judgment to Mr. Burley for the $200,000 proceeds, $20,000 in penalties under La.R.S. 22:1973, as ewell as $100,000 in penalties under La.R.S. 23:1892. New York Life filed a Motion for a New Trial, which the trial court denied. New York Life appealed the default judgment and the denial of its Motion for New Trial to the Louisiana Third Circuit Court of Appeal.

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