Real Estate

July 16, 2012

Deposition Two-Step: Conflicting Reasons for Quitting Job Early Leads to Perjury Charge

This case is a welcome reminder of how an attorney’s advice may sometimes lead to more harm than good. Brown brought suit against his former employer, Skagit, under Title VII claiming racial harassment and constructive discharge. In a deposition, Brown testified that his sole reason for quitting his job at Skagit was due to racial harassment. However, in a deposition four months earlier in an unrelated personal injury case, Brown testified that he left Skagit solely because of debilitating back pain suffered during a car accident. Skagit sought dismissal of Brown’s claims based on his conflicting testimony, which the district court allowed and dismissed with prejudice. The court also went one step further finding Brown committed perjury. Brown’s appeal is based on a matter of fairness, arguing that a less severe sanction is in order and that he was entitled to explain the discrepancy between the testimonies.

To emphasize the facts, in the first case, based on racial harassment and constructive discharge under Title VII, 42 U.S.C. sec. 2000e, Brown testified as to how he felt endangered by his co-workers’ threatening behavior, which involved dropping heavy plates and pipes near him. He was also distraught by his co-workers flinging derogatory remarks at him on a daily basis. He felt compelled to quit his job, as his supervisors purportedly ignored this behavior. When asked why he quit his job, he testified that the only reason he quit was because of the racial harassment. He reiterated that there were no other reasons for his quitting.

In a completely unrelated deposition for a personal injury claim, Brown testified that the exclusive reason he left Skagit was due to his debilitating back pain, which prevented him from performing his job as a welder. He again emphasized and confirmed that this was his only reason for leaving his job.

July 9, 2012

Timeliness to Rebuild in New Orleans Still an Issue after Hurricane Katrina

by Berniard Law Firm

The idea of timeliness is a common contract clause that requires that one of the parties perform a mandatory act within a certain amount of time. There is often a specific amount of time attached, but sometimes the clause can simply state that an action be carried out “within a timely manner” or similar wording. Usually if a party does not follow a timeliness requirement, the other party can dissolve the contract. However, if there are extenuating circumstances that create a situation in which the timeliness requirement could not have been satisfied, then courts may take that into consideration and allow the contract to continue.

In the aftermath of Hurricane Katrina, many companies were scrambling to rebuild their companies and manage rebuilding in hopes of returning to some form of New Orleans normalcy. Due to the myriad of weather and levee related problems, common damages included flooding within buildings, broken windows, roof damage, and a number of other damages relating to the huge amounts of wind and rain. The damage was enough to force the city of New Orleans shut down for at least thirty days after the storm. One would think that these conditions might fit with those extenuating circumstances to avoid a timeliness provision regarding how quickly to rebuild.

Conversely, the court ruled that this was not the case. Expert testimony stated that contractors were working to rebuild within two weeks after the storm. Therefore, contracts that included timeliness provisions still had full force. In one case, a lessee had a provision in their rental agreement that stated if there was significant damage the lessor could choose to either repair the property or terminate the lease within thirty days after the disaster. If the lessor chose to rebuild, then he would be required to rebuild within 120 days. In this case, the lessor chose to rebuild, was unable to fulfill the timeliness requirement. Instead, the property was returned to a “shell condition” nearly a year after Katrina hit. The “shell condition” consisted of very few substantial repairs, so that the building could not be used for its intended purpose. Instead, vital things were missing such as doors and doorframes.

April 8, 2012

Happy Holidays to all of our Friends

by Berniard Law Firm

Happy Holidays from the Berniard Law Firm! We will resume blog posting on Tuesday.

January 9, 2012

Real Estate Agent Not Liable for Defect in Alexandria Case

by Berniard Law Firm

Paul and Anna Moreau thought they were buying a house with a 10-year-old roof. After they moved in, they learned that the roofing tiles were so old that they were no longer made. Their claim against the real estate agent, who represented both sides in the sale, failed at the trial court. In Moreau v. McKenzie, No. CA 11-197 (La. Ct. App. 3 Cir. 10/5/11), the court of appeal agreed with the trial court’s dismissal of claims against Kelly Ducote, stating the real estate agent was not liable for failure to disclose defect in sale of house in Alexandria because the agent did not know the seller’s statement was misleading.

The Moreaus purchased the home in Alexandria, La., from Mary McKenzie and Priscilla Goudeau. Ducote was agent for both buyer and seller. The property disclosure form that the Moreaus received said that the house’s roof had leaked in the past, but it was replaced in 1998-99 with “all new decking & felt replaced with 70 yr. clay tile.” A home inspection indicated that the roof was six to ten years old. The inspector found nothing serious. The sale closed. Sales documents warned that the sale was “as is” and without warranty, and Ducote made no warranty on the house or its condition.

When the Moreaus tried to repair a few broken roof tiles, “they learned that the tiles on the roof had not been manufactured for several decades, meaning the entire roof had not been ten years old as they had previously thought.” Only the underlying deck and felt had been completely replaced. The old tiles had been reinstalled over the new deck and felt.