Property

August 11, 2016

St. Tammany Parish Property Owner Gets His Day in Court on His Trespass Claim Against Renaissance Media

electric-tower-on-corn-field-1373345-1024x768 In 1997, Brandon Hirstius purchased a tract of land in St Tammany Parish. Nearly 14 years later, in 2011, Mr. Hirstius complained of an unauthorized utility pole on his property belonging to BellSouth Telecommunications, Inc. and filed a trespass lawsuit against the telecommunications company. In the midst of the June 2012 trial, Mr. Hirstius discovered the Renaissance Media, LLC, owned aerial wires attached to the utility pole in question.

In May 2013, Mr. Hirstius filed a trespass lawsuit against Renaissance seeking damages and a mandatory injunction requiring Renaissance to remove all its equipment from his property. In response, Renaissance filed a single pleading arguing that there was a peremptory exception of no right of action, meaning that Renaissance believed that Mr. Hirstius did not have a legal right of action, and, alternatively, Renaissance also argued that Mr. Hirstius’ claims were prescribed, meaning that he did not file the trespass claim within a year of discovering Renaissance’s equipment on his property and therefore could not do so now. See La. C.C.P. arts. 3492 & 3493.

The trial court concluded that Mr. Hirstius’ claims were prescribed and granted Renaissance’s motion for summary judgment dismissing the lawsuit against Renaissance. The court determined that Mr. Hirstius knew or should have known about the existence of the equipment on his property when he filed the lawsuit against BellSouth in 2011, and therefore, his filing of the lawsuit against Renaissance in 2013 was more than a year after such knowledge and he was therefore barred from seeking damages. Mr. Hirstius argued that his claims were not prescribed because the trespass by Renaissance was continuous, and therefore the one year clock had not started. The court rejected this argument. The court also denied Renaissance’s exception of no right of action on the basis of mootness.

July 8, 2016

What Does Predial Servitude, Acquisitive Prescription and Precarious Possessor, mean in Louisiana?

by Berniard Law Firm

paris-1452311-1024x768 Residents of Louisiana may sometimes feel like there is no other place quite like their home state, but as a recent case out of Vermillion Parish demonstrates, when it comes to the laws regarding land and property, Louisiana truly is one-of-a-kind. Thanks to Louisiana’s history with the Napoleonic Code, Louisiana residents deal with legal issues other State residents never face, such as servitudes, usufructs, and acquisitive prescription. The following case out of Vermillion Parish caused the Louisiana Supreme Court to settle a land dispute by analyzing if a proclaimed landowner qualified as owner of the disputed land through acquisitive prescription and along the way provides some insight into how those terms are defined under code.

The land dispute revolves around the Boudreaux family (BF) and the Cummings family (CF). BF was seeking acknowledgment of a predial servitude (right of way) by virtue of acquisitive prescription (acquisition of ownership or other real rights in movables or immovables by continuous, uninterrupted, peaceable, public, and unequivocal possession for a period of time) and an indefinite ruling stopping CF from obstructing their access to the property. BF claimed his family had been using a pathway and gate to access the land next door that belongs to CF since 1948. BF used the right of way to transport farming apparatus and to easily enter the road next to it. In 1969, CF asked BF to move the right of way, but BF ignored the request and continued using the right of way until the CF put a lock on the gate in 2012 and prevented BF’s use.

At the trial court level, CF contended BF was a precarious possessor, thus incapable of possessing the land or having acquisitive prescription run in his favor. A precarious possessor possesses with the permission of or on behalf of the true owner or possessor, a precarious possessor thus does not intend to own the thing he detains. Under Louisiana law, in order for one to truly claim ownership of property, they must not only have possession, but also have proper animus, or the intent to own the thing. The trial court disagreed with CFs argument, and ruled BF acquired the right of way over the CF estate by acquisitive prescription. The court of appeal affirmed the judgment. Cf was unhappy with those decisions so he appealed once again to the Louisiana Supreme Court.

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 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.

January 12, 2014

Personal Jurisdiction Reviewed in Case With International Implications

by Berniard Law Firm

The U.S. Court of Appeals for the Fifth Circuit affirmed a judge’s dismissal of the People’s Republic of China and a Chinese company, Xiamen, from litigation in the U.S. District Court for the Eastern District of Louisiana. The appeals court agreed with the trial court that the federal judiciary lacked personal jurisdiction and subject matter jurisdiction over the Chinese company and the PRC, respectively. The result was that the district court could not enforce an arbitral award under the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards, also known as the New York Convention.

The underlying issue is a contract dispute between Covington Marine Corporation and Xiamen Shipbuilding. Pursuant to their contract’s arbitration clause, the dispute went to arbitration under the rules of the London Maritime Arbitration Association. The tribunal found neither side liable, but issued a separate award requiring Covington to pay 40% of the costs and Xiamen 60%. Xiamen then filed a petition in a Chinese court to have the liability award recognized and enforced. Covington did the same with the costs award.

Meanwhile, Covington appealed to the English High Court. The High Court found Xiamen liable, ordered Xiamen to pay 100% of the costs to Covington, and sent back the case to the tribunal for modification of the award. The arbitral tribunal changed their ruling and Covington petitioned the Chinese court to recognize the new awards.

December 28, 2013

Car Accident Leads to Examination of Mutual Responsibility

by Berniard Law Firm

We’ve all been there: you’re running late for work, so you rush out the door and into your car. You drive ever so slightly above the speed limit, and all the traffic lights you come across are green. Fortune seems to be on your side. Suddenly, a car seemingly comes out of nowhere and hits you. Are you partially to blame because you were in a rush and drove over the speed limit? If you are liable, how does it affect your ability to collect damages from the other driver and his or her insurance company?

Laura McKinney of Shreveport, Louisiana, faced those very questions after she collided with another driver on the morning of July 23, 2009. She was running late for her 6:00 a.m. shift at Holy Angels Residential Facilities, and the accident occurred just as she turned into its parking lot. A co-worker was leaving the parking lot and cut across several empty parking spaces to enter the main travel lane when she collided with McKinney. Neither party reported any injuries at the time, but McKinney developed left knee pain three weeks later and was diagnosed with a left knee contusion. She subsequently filed a lawsuit against the other driver and her insurance company.

At trial, several witnesses to the accident provided vital eyewitness accounts to help the court determine who was at fault. One witness testified that it appeared that McKinney was driving faster than the parking lot’s signed speed limit of 15 miles per hour. Another witness, however, testified that she did not think McKinney was driving above the speed limit. After weighing the evidence, the trial court ruled that McKinney was 40 percent at fault and the other driver was 60 percent at fault. McKinney’s damages award was therefore reduced by 40 percent, and the trial court entered a judgment in her favor in the amount of $7,632.60. McKinney appealed, arguing that the trial court erred in finding that she was 40 percent at fault and that the trial court also erred in awarding her an excessively low amount of damages.

December 20, 2013

Employer-Employee Relationship Must Be Defined In Car Accident Lawsuits

by Berniard Law Firm

Under the respondeat superior legal theory, an employer can be held liable for his employees’ acts that occur within his scope of employment. This means that a truck company, for example, may be held responsible for an accident caused by one its drivers who was speeding or intoxicated while driving his route. This doctrine can be complicated when questions arise as to whether or not the employee was within the scope of his employment, or whether the person who caused the injurious accident was in fact an employee.

To determine scope of employment, one must look to what the employer pays the employee to do and what, exactly, the employee was doing when the accident occured. If a truck driver deviated from his route to go to a bar, for example, then it will likely be determined the driver was engaged in frolic for his own benefit and therefore was not within the scope of his employment. This means if an accident occurs while that truck driver is on his way to the bar, then the truck company will not be held liable. If, on the other hand, the truck driver had to deviate from his standard route because of a flooded road, then the detour is still considered to be to the employer’s benefit and within his scope of employment. An accident that occurs while on detour will still be imputed to the truck company.

A recently decided case by Court of Appeal for the First Circuit helps illustrate issues of determining the employee/employer relationship. The importance of this aspect is if the party responsible for the accident is found to be an independent contractor rather than an employee, liability cannot be placed on the employer. So, in the case heard on appeal by the First Circuit, a woman who was injured by the negligent driving of a delivery van driver sought to join the subcontracting broker and the delivery service that hired the individuals responsible for the accident. To determine whether an independent contractor relationship existed, the court looked to case law and the facts before it.

December 17, 2013

Summary Judgment Tripping Case from Baton Rouge Illustrates Court Complexities

by Berniard Law Firm

A recent case appealed from the Parish of East Baton Rouge provides a great example not only of the potential difficulties of recovering damages for negligence from a merchant, but also of summary judgment and how it works. In November 2006, the plaintiff entered the defendant’s store, tripped on what she claims was a ‘flipped-up’ doormat, and struck her head on some shelving. She was injured as a result and tried to recover damages from the merchant, claiming that she was injured as a result of the merchant’s negligence in maintaining the premises. The trial court granted summary judgment in the merchant’s favor, and the appellate court affirmed.

If someone is injured while lawfully on a merchant’s property and wishes to recover damages for negligence from that merchant, they must meet four requirements provided by Louisiana law. The claimant must show that their injury was the result of an unreasonably dangerous condition on the merchant’s property, that the danger presented by that condition was reasonably foreseeable, that the merchant knew or should have known of the danger prior to the claimant’s accident, and that the merchant did not take reasonable steps to correct the situation.

Summary judgment is rare and requires clearing some pretty high hurdles. A court must first find that there is no genuine contention as to any facts that might influence the outcome of the case. If the court so finds, then it will simply apply the law to the relevant facts and rule in a party’s favor as a matter of law, perhaps before there is even a chance for a trial. Where the party moving for summary judgment will not bear the burden of proof at trial, for instance if that party is a merchant defending against a negligence claim, then s/he need only show the opposition’s inability to prove or disprove one or more key elements of his/her action or defense. The opposing party must then answer somehow to prove that s/he will be able to prove the element(s) in question at trial, or lose on summary judgment.

December 4, 2013

Burden of Proof in Claims Against Merchants

by Berniard Law Firm

Louisiana merchants must keep their premises safe not only for their guests or customers but also for any person invited onto the property for business purposes. This also includes persons delivering goods to restaurants like in the case of Jones v. Jula Trust, LLC.

Jones was a deliveryman for Pepsi. En route, he stopped at a Jennings Popeye’s restaurant to deliver some Pepsi products that morning. While pulling his loaded dolly through the restaurant’s back door, he slipped and fell. His slip caused the boxes of Pepsi to topple on top of him. About a year after his accident, Jones initiated suit against Popeye’s by filing against the landlord of the property, JULA Trust, LLC. Jones claimed that either water or grease on the floor caused his fall, but he could not explain where the substance had come from. The Popeye’s manager said that he had conducted a walk-through inspection of the premises that morning and had not seen anything slippery on the floors. Nor had any employees notified him about any slippery substance on the floor the morning of the accident.

La. R.S. 9:2800.6 requires a merchant to maintain the through ways of the premises in a safe manner, and in a condition so as to not cause harm to patrons. The burden of proof remains with the plaintiff to show the following elements: (1) The conditions at hand posed a reasonably foreseeable danger to the injured person in the case, and that the harm was not a reasonable harm one would expect in the situation; (2) The merchant, prior to the incident, caused the conditions responsible for, or could have prevented the accident, after becoming aware of the problem; (3) The merchant violated the standard of care necessary for the situation. Not having a written or verbal safety and cleanup code is not enough on its own to prove that a standard of care was violated when evaluating reasonable care in a situation or incident.

December 2, 2013

Court Throws Out Lafayette Parish Case As Plaintiff Fails To Deliver Service of Process Before Deadline

by Berniard Law Firm

It is vital to know proper court procedures at the outset of litigation or else an otherwise valid claim might be thrown out of court without ever being heard. One prime example is the need to send initial court documents to a defendant within a set deadline (sending such documents, such as a citation or summons, is known as service of process). Case in point, the Lafayette Parish Court of Appeal, in Boka v. Oller, recently upheld the dismissal of a claim without even considering the merits because service of process was delivered too late. Therefore, it is important to know the rules before bringing a lawsuit or a good claim might be lost due to a mere technicality, such as delivering papers too late. For a non-lawyer, an attorney can be instrumental in making sure proper procedures are followed so that the party has a chance to present their case in court.

In Lafayette Parish, Louisiana Code of Civil Procedure Article 1201 requires that service of the citation must be requested within a deadline of ninety days from commencement of the action. Article 1201 also notes that service of process on defendants is “essential” and “without them all proceedings are absolutely null.” The deadline for service is to ensure that defendants are aware of an action and have enough to prepare. Therefore, as a delay in service is deemed unfair to the defendant, a court may dismiss a claim if service of process is sent too late.

There are some limited exceptions to the rule, but, due to the risks involved in these exceptions, generally a party should attempt to serve process on time. For example, one exception permits late service if there is good cause for the delay. However, as the court is unlikely to accept run-of-the-mill excuses for delays, proving a good cause for failure to serve process on time can be difficult. As noted below, the court in Lafayette Parish found that there was no good cause for late service as the plaintiff knew the defendant’s address.