Articles Posted in Litigation

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.

Being on time is important. In legal matters, being on time is absolutely crucial to the workings of the court and the survival of the case. There are rules that determine the timeframes and time limits involved in a legal battle and it is always best to follow them to the letter.

In an East Baton Rouge lawsuit seeking to recover unpaid insurance premiums, the defendant, Insurer’s Salvage Auction, Inc., learned the vital importance of timely serving a memorandum in opposition to the plaintiff’s motion for summary judgment.  The First Circuit Court of Appeal, in Retailers Casualty Insurance Company v. Insurer’s Salvage Auction, Inc., stated that the 19th District Court properly excluded the defendant’s untimely served memorandum in opposition and supporting affidavit.  As such, the First Circuit Court of Appeal affirmed summary judgment in favor of Retailers Casualty Insurance Company.

According to the applicable Louisiana rules, La. C.C.P. art. 966B(1) and La. Dist. Ct. R. 9.9(c), all parties must receive a defendant’s memorandum in opposition and supporting affidavits at least eight calendar days before the hearing on a plaintiff’s motion for summary judgment.  In the instant case, Retailers Insurance Company filed its motion for summary judgment on December 29, 2013, and the hearing was originally set for March 17,2014.  The hearing was later rescheduled for May 19, 2014.