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tyler-butler-691603-unsplash-1024x683It is one thing to own land, but it is another thing to know what rights come with that ownership. Without the help of a good lawyer, a misunderstanding of property rights could put you in court for trespassing–or worse. For instance, it might be important to understand if installing a pipeline on land protected by conservation restrictions is allowed. This issue was addressed in 2016 when some land in Iberville Parish because of the subject of a dispute between two companies.

The land at issue referred to as “Section 12,” which was located in a Mitigation Bank. Before 1999, Lago Espanol, LLC (“Espanol”) owned the rights to excavate the land for minerals and rights to the property’s surface. In 1999, Espanol entered into an agreement with several state regulatory bodies to form the Mitigation Bank. As part of the agreement, Espanol placed certain restrictions on the use of the land through a conservation servitude. In Louisiana, a conservation servitude requires the owner to “retain or protect the property’s natural, agricultural, scenic, or open-space values through the protection of its natural resources, air, and water quality, and historical, archaeological, or cultural aspects.” La. R.S.9:1272.

In 2006, Rio Bravo Energy Partners, LLC (“Rio Bravo”) obtained a lease for the mineral rights of Section 12 from Espanol. In 2009, Spanish Lake Restoration, LLC (“Spanish Lake”) obtained Section 12’s surface rights. Two years later, Petrodome St. Gabriel II, LLC (“PD”) acquired Section 12’s mineral rights and a wetland permit from Rio Bravo, which allowed Petrodome to board the pre-existing, unimproved roads in Section 12. PD boarded the roads, and made other improvements to the plot of land.

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competition-1024x683A non-compete clause is a common feature in many employment agreements in Louisiana. The clause is a way for an employer to restrict an employee from going to work for a competitor and thus potentially harming the original employer. Most non-compete clauses, in order to be enforceable, must contain some limitation as to time and geographical location.

Katie Urban-Kingston was hired by Billedeaux Hearing Center (“Billedeaux”) in Lafayette in May of 2014. Urban-Kingston and Billedeaux entered into an employment agreement containing a non-compete clause that applied to certain areas of Louisiana, Arkansas, Texas, and Mississippi, and allowed for the collection of any costs incurred by Billedeaux for legal enforcement of the clause. Less than a year later, Urban-Kingston left Billedeaux and became employed by Williamson Hearing Center (“Williamson”), just outside of Baton Rouge. Billedeaux sought and was granted a temporary restraining order in February 2015 to enjoin Urban-Kingston from working for Williamson, and a show-cause hearing for a preliminary injunction was set for early March.

At the hearing, the parties stipulated that Urban-Kingston was trained by Billedeaux, that she left Billedeaux’s employ and worked for Williamson at the time of the trial, and that Williamson is in direct competition with Billedeaux. Urban-Kingston claimed as a defense against the issuance of a preliminary injunction, however, that the non-compete clause in her employment agreement with Billedeaux was too broad. The trial court determined that the only issue to decide based on Urban-Kingston’s defense was whether the two hearing centers were actually in competition. But since the parties had already stipulated that point, the court rejected the defense, issued the preliminary injunction in Billedeaux’s favor, and ordered Urban-Kingston to pay Billedeaux’s attorney fees of approximately $6,000.

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trucking-in-snow-1357665-1024x681The viewing of a dead body can be traumatic for many people. If that viewing is caused by the negligence of another an excellent attorney may help you secure compensation for the emotional anguish experienced from that event. Shortly after midnight on February 4, 2011, Ronnie Rodd Davis was operating a tractor-trailer, owned by Superior Carriers, on eastbound Interstate 10 near the Atchafalaya Basin Bridge in Baton Rouge. Mr. Davis noticed that a collision had recently occurred in front of him and was able to stop before joining the other cars in the collision. Due to the abrupt stop to avoid the collision Mr. Davis’ tractor-trailer was rear-ended by another tractor-trailer operated by John V. Scott, and owned by Service Transport Company. The collision caused Mr. Davis’ tractor-trailer to move forward and strike a Ford F-150 pickup truck that was involved in the initial collision. Mr. Davis exited his tractor-trailer and upon exiting saw the deceased driver of that Ford F-150, Jonas T. Richmond, under or near Mr. Davis’ trailer axle.

Mr. Davis filed a lawsuit for damages and named John V. Scott, Service Transport, and Service Transport’s insurer, National Interstate Insurance Company (National Interstate), as defendants. The defendants filed a motion for partial summary judgment and sought to dismiss Mr. Davis’ claims of mental anguish and/or emotional distress due to Mr. Davis’ viewing of the deceased body of Mr. Richmond. After a hearing, the Trial Court granted the defendants’ motion for partial summary judgment. This dismissed any claims Mr. Davis had related to any alleged mental and/or emotional injuries.

Mr. Davis then filed a motion to designate the judgment as final so he could immediately appeal. The defendants opposed this motion. After a hearing, the Trial Court designated the judgment as final for purposes of immediate appeal and determined there was no just reason for delay. On appeal, the Appellate Court had both procedural problems and issues of causation regarding the accident. First, the Appellate Court dealt with the procedural issues created by the order of final judgment for purposes of immediate appeal. Only after the issue of whether the final judgment order was proper could the court consider the underlying factual issues of whether it was appropriate to grant summary judgment in favor of the defendants. The main issues were whether the issuing of a final judgment was proper, whether to convert the appeal to an application for a supervisory writ, and whether the Trial Court erred in granting Mr. Scott’s motion for partial summary judgment.

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back-to-school-1416942-1024x681People seek assistance from the courts for a number of reasons. Some may demand a monetary payment after suffering a loss due to another’s wrongful conduct. Others may aim to prevent harm resulting from the wrongful conduct of another by petitioning the court for protective action. In Louisiana, a court has several ways to prevent harm. One way is the injunction, a court order requiring a person or entity to act in a certain way or to avoid specified conduct. This is generally in the form of a permanent injunction, issued after a formal trial. However, before or during such a trial, the court may hold a hearing to consider a preliminary injunction, which acts to achieve the petitioner’s objective temporarily, until a full judgment can be made. Another way is a temporary restraining order. This order is similar to a preliminary injunction but is utilized in emergency situations where the delay due to a hearing could result in irreparable harm to the petitioner.      

Michael Delesdernier and Cedric Floyd were both elected to membership of the Jefferson Parish School Board in 2014. At a meeting of the board in July of 2014, the school board’s attorney offered a legal opinion on a matter before the board. Apparently disagreeing with the attorney’s statement, Floyd responded in an aggressive manner using strong words. Delesdernier advised Floyd to calm down, which suggestion Floyd did not well. Floyd began yelling and shoved Delesdernier against the wall. Multiple board members intervened to separate Floyd from Delesdernier, who did not fight back. Following this altercation, Delesdernier filed a petition for an injunction and temporary restraining order from the Jefferson district court.  He asked the court to prevent Floyd from coming within three feet of him and to order him not to threaten or intimidate him. In the interval before the preliminary injunction hearing, the district court issued multiple temporary restraining orders, which Floyd opposed. In October of 2014, the district court conducted a hearing to consider issuing a preliminary injunction. After considering the testimony of eyewitnesses to the altercation, the court dismissed Floyd’s motion opposing the temporary restraining order and issued the preliminary injunction. Floyd appealed this decision to Louisiana’s Fifth Circuit Court of Appeal.

Under Louisiana law, a party cannot appeal a decision involving a temporary restraining order. La. C.C.P. art. 3612.  However, a preliminary injunction is subject to appellate review. For an injunction to be issued by the court, the petitioner must prove that without it, he would be irreparably harmed. La. C.C.P. art. 3601(A).  Irreparable harm is an injury or loss that a money judgment would not remedy. However, there is an exception to the requirement of irreparable harm:  if the petitioner can show that the conduct he seeks to prevent is unlawful, then he no longer must prove irreparable harm. Jurisich v. Jenkins, 749 So.2d 597 (La. 1999). Here, Floyd’s threatening and violent conduct during the school board altercation would be considered unlawful assault under Louisiana law. La. R.S. 14:36. The same unlawful conduct is what Floyd sought to prevent through his petition. Accordingly, the Fifth Circuit held that the district court had acted properly in granting the preliminary injunction, and affirmed the judgment.

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thinking-out-of-the-box-3-1237519-1024x1024Accidents involving children are difficult for everyone involved. When the accident results in extensive, life-changing injuries, the situation becomes even more tragic and often results in multiple lawsuits. A person cannot recover damages unless he or she has a recognized claim to do so under law. This concept is known as “standing.” Calvernia Reed, maternal aunt to an injured minor child, Geneva Marie Fils, got a glimpse into how strictly Louisiana courts construe that standing requirement.

On January 2, 2006, Geneva Marie Fils (“Geneva”) was born to John and Demitria Fils. She was almost immediately taken out of the biological parents’ care by the Department of Children and Family Services and placed in the foster home of Mayola Calais. On March 22, 2006, Geneva was involved in an automobile accident and suffered multiple injuries, including a fractured skull, an intracerebral hematoma (brain bleeding), and other traumatic brain injuries. Geneva’s biological parents first filed suit against multiple parties involved in the incident, their insurance companies, and the Department of Children and Family Services itself. Calvernia Reed was not named in the petition, but she was included as a plaintiff in the body of the petition as Geneva’s then-current guardian. The biological parents of Geneva sought damages both on behalf of Geneva, and for their own loss of consortium. In early 2011, Demitria Fils passed away. In February of 2011, Ms. Reed was substituted as the proper plaintiff in the proceedings after being granted custody of Geneva, as well as judicially appointed as Geneva’s “tutor.” Tutorship is the legal status of guardianship under Louisiana law. In late 2013, Ms. Reed amended the petition to include her own claim for loss of consortium with Geneva as a result of her injuries. The trial court dismissed Ms. Reed’s claim for loss of consortium because Ms. Reed was not the parent or guardian of Geneva at the time of the accident. Ms. Reed appealed.

Under Louisiana law, a person may recover loss of consortium, service, and society if the person could recover under “a cause of action for the wrongful death of an injured person.” La. C.C. art. 2315(B). The wrongful death statute allows for a cause of action by “[t]he surviving father and mother of the deceased, or either of them if he left no spouse or child surviving.” La. C.C. art. 2315.2. The statute also includes adoptive kin as named in the statute.  La. C.C. art. 2315.2. It does not, however, specifically include a maternal aunt. The list is considered exclusive under Louisiana law, meaning that if the kin is not mentioned in the statute, then the kin cannot recover damages for the claim. Leckelt v. Eunice Superette, 555 So.2d 11 (La. App. 1989). Outside of including adoptive kin under the statute, the terms “mother” and “father” are not defined in La. C.C. art. 2315.2. The Louisiana Children’s Code currently defines “parent” as “any living person who is presumed to be a parent under the Civil Code or a biological or adoptive mother or father of a child.” La. Ch. C. art. 116(17). Notably, the Children’s Code does not give tutorship, custody, or a guardian the legal status of a parent.

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tax-1501475-1-1024x768The old saying goes:  nothing is certain but death and taxes. In the case of property taxes on real, or immovable, property, failure of payment can permit the sheriff of the parish in which the property is located to hold a “tax sale.” In a tax sale, the delinquent property taxes are paid out of the proceeds of the property’s sale. Removing a homeowner from his residence in order to pay overdue taxes is a very serious and potentially damaging action — both financially and emotionally — for the homeowner. For this reason, under Louisiana law, property owners who lose their homes due to a tax sale have options for reclaiming their property after a tax sale if they can obtain sufficient funds to make good on what they owe. This process is known as redemption of the property. If redemption is not feasible, a homeowner can still seek an annulment of the tax sale if certain conditions are met. A case that came before Louisiana’s Fifth Circuit Court of Appeal illustrates how these procedures operate.

Mark Manganello owned a condominium on Avant Garde Circle in Kenner, Louisiana. He failed to pay property taxes for the condo in 2009. In April 2010, the Jefferson Parish Sheriff’s Office notified Manganello of his property tax delinquency by certified mail. Two months later, the Sheriff’s Office advertised a tax sale of the property, and the property was purchased by Virtocon Financial Services. A Tax Sale Certificate in favor of Virtocon was recorded in the immovable property records of Jefferson Parish. Virtocon subsequently assigned its rights to the Tax Sale Certificate to Philnola, LLC.

Four years later, Philnola filed a lawsuit against Manganello to confirm the tax title of the property. Philnola asserted that Manganello was properly notified of the tax sale, but that he neither paid the taxes due nor redeemed the property within the three year period provided by Louisiana law. Phinola’s motion for summary judgment was denied by the trial court, however, because the court found genuine issues of material fact existed in relation to whether Mangenello sought redemption of the property. Then Phinola filed a second motion for summary judgment, arguing that Manganello failed to begin a proceeding to annul the tax sale within the six-month service notice of sale as required by Article 7 of the State Constitution. Philnola argued that because Manganello failed to seek an annulment of the tax sale, the property should belong to Phinola. Manganello argued that because the 2009 taxes had either been paid or because he had begun the redemption process within the statutory redemption period, there was no reason to seek an annulment of the tax sale. The trial court granted the second motion for summary judgment and confirmed Philnola’s tax title to the property. Manganello appealed to the Fifth Circuit.

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money-money-money-1241634-1-1024x768Have you ever heard the maxim “be careful what you wish for?” This phrase applies almost savagely to Robert Alvarez, a New Orleans financial advisor who sought relief on appeal from an order to pay attorney’s fees and costs in a dispute with his former employer.

Robert Alvarez was associated with Ameriprise Financial Services. After a dispute with the company, Alvarez left Ameriprise and sold his book of business to another Ameriprise advisor, Rufus Cressend. In August 2014, Alvarez filed a petition for a temporary restraining order (“TRO”) and an injunction against Cressend and Ameriprise, seeking to enjoin them from soliciting his former clients and other actions that allegedly damaged his professional reputation. The trial court granted Alvarez’s motion for a TRO on the condition that Alvarez pays a $25,000 security deposit.

Approximately a month later, Cressend and Ameriprise filed a motion to dissolve the temporary restraining order, as well as for the award of attorney’s fees. They asserted that Alvarez failed to prove irreparable harm and failed to provide justification for lack of notice required by La. C.C.P. art. 3603. The trial court denied Alvarez’s motion for a preliminary injunction, found that the TRO had been improperly issued, and granted Cressend’s and Ameriprise’s motion to dissolve the TRO. On the issue of attorney’s fees, Cressend submitted an invoice of fees and costs of about $9,000, and was awarded about $2,500; Ameriprise submitted invoices in the amount of roughly $56,000 and was awarded approximately $20,000. Alvarez appealed the award of attorney’s fees. He settled with Ameriprise, leaving the only issue for the appellate court to consider the $2,500 fee award to Cressend.

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court-fez-morocco-1235115-1024x768In order to prevail in a lawsuit, the plaintiff must have a “cause of action,” which is a theory of law supported by facts that the court can recognize as a path to providing the plaintiff a remedy.  At trial, a defendant may raise a peremptory exception — essentially an argument that the court cannot help the plaintiff with his or her problem — if the plaintiff’s petition does not allege facts that support the cause of action.  

In March of 2005, John Rombach resigned from his position in Baton Rouge as fiscal officer for the State of Louisiana. Rombach’s job was to analyze the financial effects of proposed legislation on the government, including tax revenue. He claimed that he was so good at his work that he made enemies of some of the officials whose legislation he recommended be rejected due to their high cost. He further claimed that these opponents attempted to have him removed from office on the basis of supposed inappropriate payments he made to himself.

Rombach found himself before the Louisiana Board of Ethics in 2010. After the Board of Ethics ultimately dismissed all complaints against Rombach, he filed a lawsuit for defamation, malicious prosecution, and abuse of process against the “opponent” state officials who he believed filed the ethics complaints that led to the Board’s investigation. The defendants filed peremptory exceptions, claiming that the facts alleged by Rombach did not support a theory of law that would permit the court to award Rombach damages. Though the trial court denied these peremptory objections, it nevertheless dismissed the case. Rombach appealed to Louisiana’s First Circuit Court of Appeal.

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modernist-hospital-facade-1223549-768x1024Generally, when an accident occurs on a property that is the result of the property owner’s negligence, it is presumed that the property owner is liable for the person’s injury. However, when liability does not exist, a motion for summary judgment is a procedural device that the defendant in a lawsuit can use to dismiss the plaintiff’s claim. Under Louisiana law, a motion for summary judgment will be granted if the pleadings and discovery show there is no genuine issue of material fact and that the party seeking summary judgment is entitled to judgment as a matter of law. See La. C.C.P. art. 966.

A trip-and-fall case offers an example of a defendant’s successful use of summary judgment. On October 11, 2007, James Dawson tripped and fell on the sidewalk near the entrance to Charity Hospital in New Orleans. He tripped on a crack in the sidewalk and suffered injuries as a result. Contending the State of Louisiana, as the owner of the hospital, was liable for failing to maintain the sidewalk, Dawson filed a lawsuit.

The State moved for a motion for summary judgment. In its motion, the State disputed Dawson’s allegation that it had authority over the sidewalk where his injuries occurred, arguing that without proof of authority, it could not be liable for Dawson’s injuries. See La. R.S. 9:2800. The State supported its motion with affidavits from Frederick L. Wetekamm, an engineer for the Louisiana Department of Transportation and Development and Robert J. Arnould, a maintenance supervisor for Charity Hospital. Wetekamm explained that the State was only responsible for maintaining its right-of-way on Tulane Avenue which began two blocks beyond the hospital. Arnold stated that Charity Hospital maintenance staff conducted no activities affecting the condition of the sidewalk in front of the hospital.

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massage-chair-1479054-769x1024A therapeutic massage can offer many medical benefits. But if the massage therapist uses too much force, or applies force in an inappropriate way, severe injury to the patient can result. In such cases, an experienced personal injury attorney may be needed in order for the patient to recover damages for medical bills, lost time from work, as well as pain and suffering.

Dr. Maureen Jones received a Swedish massage at the Paris Park Salon in Baton Rouge on October 11, 2007, from therapist Larry Ashton. Jones claimed that during the massage, Ashton was very rough and applied heavy pressure and force, which caused Jones to experience pain and discomfort. The next day, Jones suffered continued sharp and burning back pain. The pain radiated into her buttocks and right leg, where bruising was also present.

Jones sought medical treatment, during which an MRI revealed that she had sustained a rupture of her L4-L5 disc. Jones first attempted to treat the condition without surgery, but eventually, due to continued debilitating pain, she underwent a left L4-L5 discectomy operation. Jones then filed a lawsuit against Ashton, Paris Park Salon, and the salon’s insurance carrier, ABC Insurance Company (“defendants”). Jones alleged that the message was negligently performed by Ashton, whose negligence breached the reasonable standard of care causing serious, permanent, and disabling injuries.

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