Articles Posted in Litigation

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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.

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old-house-1224719-1024x811Under 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.”

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chinese-take-away-box-1319752No one wants to ever get involved in a slip-and-fall lawsuit.  If your unfortunate enough to be injured in a slip and fall finding out who is responsible to pay for your injuries can become a troublesome matter. A recent Louisiana Fourth Circuit Court of Appeal opinion demonstrates just how complicated these lawsuits can get when a woman alleged she slipped and fell in the China Palace restaurant on South Carrolton Avenue in New Orleans.

As a result of a fall at China Palace, Debra Hershberger filed a lawsuit against the restaurant in July of 2011. China Palace leased its commercial space from LKM Convenience, L.L.C. It is important to note that LKM Convenience leased the space to China Palace, but it did not operate the restaurant. LKM Convenience did have insurance through Montpelier US Insurance Company, but China Palace was not named or insured under its policy. China Palace filed a third-party demand against Montpelier demanding defense and indemnification for LKM Convenience. At the same time, LKM Convenience named Montpelier as a defendant and demanded that the insurance company provide a defense and indemnification for China Palace, its tenant. Consequently, Montpelier filed exceptions of no cause of action and no right of action. The exceptions are legal objections to LKM Convenience’s lawsuit against Montpelier and China Palace’s demand. Ultimately, the trial court maintained the exceptions and China Palace’s and LKM Convenience action were dismissed with prejudice in May of 2014. They appealed that judgement to the Fourth Circuit Court of Appeal for the State of Louisiana.

On the appeal, the Fourth Circuit looked at whether the trial court erred in sustaining both exceptions and whether the trial court erred in not giving China Palace and LKM Convenience a period of time to amend their petitions. Ultimately, the Court of Appeals agreed with the lower court regarding all of the questions.

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old-truck-1451289-1024x768Buying 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.

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Farm-Land-expropriation Gerald O”Hara from Gone with The Wind said it best, “The land is the only thing in the world worth working for, worth fighting for, worth dying for, because it’s the only thing that lasts.” While land ownership is a sacred right in this nation it does not prevent the state government from taking your land through a process called expropriation.That process requires that the State of Louisiana pay a fair price for private land that has been expropriated for public needs.  The state must be careful in ensuring that they pay full value for the expropriated land as Louisiana statutes allow the landowner to recoup attorney fees if they are successful in proving the payment was less than adequate.  The following case out of West Feliciana Parish demonstrates what can happen when expropriation doesn’t lead to fair compensation.

In 2005, the Louisiana Department of Transportation and Development (DOTD) filed a petition under La. R.S. 48:442, in which it sought to expropriate part of a tract of land owned by the James Munson. Munson owned over fourteen acres of land, on which he had operated a bed and breakfast, plant nursery, and gift shop called “Stillwater Farms.” The compensation for the expropriated land was estimated to be $143,654.00, an amount that was deposited into the register of the court, where Munson could withdraw it without prejudice to his right to contest the amount as inadequate.

Munson subsequently filed a  demand alleging the amount paid for expropriation of the property was insufficient to cover the value of said property. Munson also requested attorney fees pursuant to R.S. 48:453(E) as well as recovery of expert witness fees. At a jury trial, both Munson and the DOTD offered expert testimony regarding the amount of compensation due for the expropriated property. The jury found that the value of the expropriated property was $148,640.00, that the remaining property was not damaged from the expropriation, and that Munson was not due any additional compensation for loss. At a subsequent hearing on attorney fees, the court ordered DOTD to pay attorney fees, legal interest on the difference between the amount deposited and the determined value of the property, court costs, and expert witness fees.

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IMG_0723Imagine your child passed away in the most horrific way. You seek remedies in the court system, but the court does not recognize your right of recovery as a parent. What a nightmare. In Louisiana, a putative (unestablished) father must timely file an action for avowal (a father’s action to establish paternity) in order to maintain a wrongful death or survivor action for the death of a child born out-of-wedlock. Failure to do so may forfeit your legal rights. A recent case from the Louisiana Supreme Court discusses the pleading requirements regarding paternity in filing wrongful death and survivor actions.

In March of 2011, six-year-old La’Derion Miller was killed shortly after being involved in a gruesome accident with a school bus. While La’Derion was attempting to board the school bus his was caught in the door. Harold Thibeaux, the bus driver, was unaware of La’Derion’s predicament and La’Darion was dragged for approximately eighty feet. When La’Derion’s arm was dislodged, he fell beneath the wheels of the bus and was critically injured.  La’Derion died less than an hour later. His six years of life were cut short. Tragically, La’Derion’s mother, Heather Jagneaux, watched the entire incident from her front yard, but was unable to reach him in time.

La’Derion’s father, Marcus Miller, filed a lawsuit individually and on behalf of the estate of his deceased son. Mr. Miller sought damages for La’Darion’s pain and suffering inflicted by the bus driver’s negligence, as well as damages arising out of the wrongful death of his son. Mr. Miller’s lawyers named as defendants the bus driver, his insurance insurer, his employer, and his employer’s insurer.

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Handrails-768x1024As the old saying goes, “accidents happen.”  But, in personal injury lawsuits, like in many matters, another saying is more on point: “The devil is in the details.”  And on that point the Second Circuit Court of Appeals reversed a summary judgment in favor of the City of West Monroe in a lawsuit brought by an elderly woman who claimed she was injured in a fall. The lawsuit against the city arose from purported negligence in maintaining the handrails of a handicap ramp located at the West Monroe court facility. The plaintiff, Bernice Walters, alleged that the handrail collapsed as she was using it to lower herself into her vehicle, which was in a parking space adjacent to the handicap ramp. Walters alleged that the city had constructive knowledge of the defective condition of the handrail. In response, the City of West Monroe moved for summary judgment and the motion was granted by the trial court.

The trial court cited a lack of evidence that the city had actual or constructive notice of the condition of the handrail; there was insufficient circumstantial evidence to prove that the city knew of the defective handrail. Appealing the summary judgment, Walters asserted that the city violated the Americans with Disabilities Act by failing to maintain the handicap ramp in a manner consistent with the ADA regulations. This violation of the ADA allegedly satisfied the burden of proof for constructive knowledge, since the existence of relevant regulations suggests that the city should have known that their lack of maintenance was negligent.      

Upon review, the appellate court accepted Walters’ theory of constructive knowledge and reversed the summary judgment. The appellate court examined the relevant Civil Code statute concerning public entities.  See La. R.S. 9:2800.  As a result, the court concluded that constructive knowledge does not require circumstantial evidence proving actual knowledge; instead, the standard for constructive knowledge is satisfied if a reasonable custodian or owner should have known of the defect while exercising reasonable care.

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tractor-1454432-1On the back roads of Louisiana it is not uncommon to see tractors and other farm equipment traversing the highway. If that farm equipment is involved in an accident with a car everyone involved might have a different story on how it occurred.  If that happens it takes the best lawyers to help the court figure out who is at fault.  The following case out of Livingston Parish shows how the courts deal with opposing views of fault in cases where cars and tractors collide.

On August 13, 2009, a multiple-vehicle collision occurred between drivers Yearn Thomas, Breanna Cloud, and tractor operator Stephen Jones on Louisiana Highway 1026 in Livingston Parish. Predictably so, the parties contested the sequence of events that led up to the incident, exactly how it came to fruition, and who was at fault.

Thomas and Cloud claimed that Jones unexpectedly swerved into the roadway from the shoulder and caused the multiple-vehicle accident when the tractor collided with Cloud, causing Thomas to subsequently collide with Cloud, then overturn into a ditch. Jones testified that Cloud collided with the left side of his bush hog and immediately after the initial impact, he heard the loud noise of Thomas colliding with Cloud and reacted by turning his tractor into the ditch on the right to avoid any more damage.

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Grocery-StoreAnyone who has purchased chicken from a grocery store knows that for some reason the packing always seems to leak. But what happens if that leakage occurs in a grocery store and you slip on it and hurt your back, is the grocery store responsible? The following case out of Washington Parish Louisiana clarifies the standards used by courts when addressing that question.

On July 5, 2011, Sylvia Jackson-Silvan visited Travis’s Grocery & Market on Derbigny Street in Bogalusa, Louisiana. While waiting in line in the check-out aisle, she slipped on “blood drippings from chicken” that had pooled on the floor. Mrs. Silvan was helped up by store employees, who quickly mopped up the liquid, before leaving the premises without further assistance.

Mrs. Silvan and her husband, James Silvan, filed a lawsuit the following February, arguing that Travis’s Market was “strictly liable for allowing dangerous conditions to exist in the store, which posed an unreasonable risk of harm and caused injury to Mrs. Silvan.” The Silvans then filed a motion for summary judgment, stating there was no material issue of fact to be decided at trial. No memorandum, exhibit, or statement of fact accompanied the motion. Travis’s Market filed its own motion for summary judgment, which was accompanied by a memorandum and numerous exhibits, stating that the essential elements of the Silvans’ claim could not be supported.  A motion for summary judgment is a procedural device used to avoid a full-scale trial when there is no genuine factual dispute. Dickerson v. Piccadilly Restaurants, Inc., 1999-2633 (La. App. 1Cir. 12/22/00).

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The Louisiana Revised Statutes along with rules of jurisprudence help Louisiana courts determine whether or not a particular driver is at fault for an accident. For example, La. R.S. 32:81(A), provides that drivers must not follow another vehicle unreasonably close and must take into account the speed of the vehicle in front of them and the overall traffic conditions. Under La. R.S. 32:79(1), drivers must stay within a single traffic lane and must not move from the lane unless they can do so safely. For the purpose of assessing liability, the rear-driver in a rear-end collision is presumed negligent and in breach of these standards of conduct. Yet, a rule of jurisprudence allows the rear-ending driver the opportunity to overcome this presumption of negligence by showing the existence of a sudden emergency caused by the driver in front of him or her. In determining whether a sudden emergency existed, courts will often rely on the testimony of the drivers and the passengers in their vehicles. As a recent decision of the Louisiana Third Circuit Court of Appeal shows, sorting through and making sense of such testimony is not always an easy task.

On August 7, 2012 Jessica Dauzat and Marcus Cooper were involved in an automobile collision in Baton Rouge, Louisiana. Both were travelling eastbound on Interstate I-10 when Ms. Sauzat’s vehicle struck Mr. Coopers’. Both drivers had passengers in their vehicles. Mr. Cooper’s car was insured by Progressive Security Insurance Company and Southern Casualty Insurance Company insured Ms. Dauzat’s vehicle for uninsured or underinsured motorist coverage.

In February 2013, Ms. Dauzat and a passenger in her vehicle, Lacey Lachney, filed a lawsuit against Mr. Cooper, Progressive, and Southern Casualty seeking damages for their injuries. Ms. Dauzat and Mr. Lachney claimed that Mr. Cooper caused the accident by suddenly switching lanes without warning. The Trial Court found that Mr. Cooper was solely at fault for causing the accident and awarded $35,165.38 to Ms. Dauzat and $34,850.12 to Mr. Lachney in damages. Progressive appealed the Trial Court judgment, arguing that it erroneously concluded that Mr. Cooper was the sole and exclusive cause of the accident.

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