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more-apartments-1451930-1024x672In contracts for the sale of land and property, parties typically execute a Purchase Agreement before the Contract of Sale. The purchase agreement may be incorporated with the contract of sale, or it may be a preliminary document that is not included in the final contract. It is important that a good attorney draft both of these documents, because issues may arise when the documents conflict or are not clear in intent.

In Woodlands Development v. Regions Bank & Johnson Property Group, Woodlands, a development company, bought land on Sandra Drive in New Orleans for the purpose of building an apartment complex. Woodlands fell on hard times and defaulted on the loan for the mortgage. After some extensions and agreements, Woodlands agreed to assign the property to a third party, Johnson Property Group (“JPG”). A Purchase Agreement, and then a Contract of Sale, between Woodlands and Johnson Property Group followed. When Hurricane Katrina caused extensive damage to the property in question, the insurance company paid the settlement to Regions Bank. Woodlands claimed it was entitled to receive these proceeds, while JPG claimed the proceeds should go toward its balance.  

After an epic battle which consisted of three appeals, and multiple motions, the Louisiana Fifth Circuit Court of Appeals affirmed the grant of a partial summary judgment motion for Woodlands Development. Summary judgment is appropriate when there is “no genuine issue of material fact,” meaning all the facts presented clearly show one party deserves to win. La. C.C.P. art. 966. Here, the party moving for summary judgment only had sufficient facts to convince a judge that some of the issues required dismissal, so a motion for partial summary judgment was put forth. JPG appealed the Trial Court’s finding in favor of Woodlands’ motion, which is the issue in the present case.

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wire-fence-1221022-1024x768When our loved one is under the care of others, we expect him or her to be free from pain and neglect. Unfortunately, the authorities in charge of our loved one can make mistakes, and sometimes, the mistakes can be fatal. In such cases, we would likely blame the authorities in charge and desire some sort of punishment upon them. However, just because the fault may lie with the authorities does not mean that punishment is inevitable. The case of Jamie Zaunbrecher is an example.

Zaunbrecher was an inmate at the Ascension Parish Jail. Two nurses, Robyn Richard and Michelle Gaudin, were in charge of his medical care. When Zaunbrecher arrived at the jail, he told the medical staff that he had pre-existing medical conditions, but did not tell them of his diverticulitis, which ultimately contributed to his death. On February 18th, six days before his death, Zaunbrecher submitted a “Medical Request Form” (“Form”) in which he sought “emergency” care. More specifically, he wrote that he had severe pain in the right side of his back and that his pain medication was not being replenished. The day after Zaunbrecher’s submission, Nurse Richard gave Zaunbrecher Ibuprofen. On February 20th, Zaunbrecher submitted another Form complaining of back pain and constipation. Nurse Richard provided Tylenol and a laxative. Zaunbrecher also asked for a blood test, but this request could not be granted as only the nurse practitioner, who was not available, could grant it. From February 21st, Nurse Gaudin took care of Zaunbrecher and provided laxatives in order to aid his constipation. Though Nurse Gaudin thought Zaunbrecher was getting better, on February 24th, Zaunbrecher grew extremely ill. He was brought to a hospital, but by the time he arrived, he had passed away. Zaunbrecher’s representative sued Richard and Gaudin for not providing proper medical treatment and violating Zaunbrecher’s Eighth Amendment Right.

Nurses Richard and Gaudin responded to the lawsuit by invoking qualified immunity. Qualified immunity is a legal doctrine that protects government workers from being sued for acts done under the scope of their employment. The Trial Court refused to grant qualified immunity, but the Appeals Court stated that qualified immunity was appropriate. When a defendant invokes qualified immunity, the plaintiff has to first show that the defendant violated a constitutional right. Atteberry v. Nocona Gen. Hosp., 430 F.3d 245, 253 (5th Cir. 2005). Here, the plaintiff’s argument was that Richard and Gaudin violated Zaunbrecher’s Eight Amendment Right by acting indifferently to his medical needs. To show this indifference, the plaintiff had to prove that Richard and Gaudin knew that Zaunbrecher “face[d] a substantial risk of serious bodily harm.” Farmer v. Brennan, 511 U.S. 825, 847 (1994). The plaintiff also had to prove that Richard and Gaudin knew this risk and failed to mitigate this risk.

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torn-ligament-and-fractured-bone-bandages-1631721-1-1024x727
Whether we like it or not, bureaucracy pervades our lives. A failure to follow a single step of an administrative task can have far-reaching consequences. This is especially so when dealing with an insurance company. The case of Dr. James Moss is an example.

Dr. Moss, a Shreveport urologist, suffered from osteoarthritis. Because his condition prevented him from performing his work, he filed a claim with his insurance company, Unum. Unum denied Dr. Moss’s claim and told him that if he wished to appeal the denial, he had to file a written appeal within 180 days. Rather than filing a written appeal, Dr. Moss directly sued Unum, arguing that filing a written appeal would have been useless. The District Court was not convinced of Dr. Moss’s argument and dismissed his lawsuit. Dr. Moss then decided to file a written appeal with Unum. Unfortunately, by this point, more than 180 days had passed, and Unum refused to accept Dr. Moss’s appeal. Dr. Moss went back to court to sue Unum a second time. Again, the District Court rejected his claim because he had failed to file a written appeal with Unum. However, this time, the District Court told Dr. Moss he could not bring the same lawsuit against Unum ever again because he could no longer file a written appeal with Unum. Dr. Moss appealed the District Court’s decision.

The Fifth Circuit Court of Appeals first noted that Dr. Moss’s insurance policies were governed by the Employment Retirement Income Security Act of 1974 (“ERISA”). ERISA allows an individual to sue his or her insurance company. 29 U.S.C. § 1132(a)(1)(B). However, before being able to sue, the individual must “exhaust available administrative remedies.” Denton v. First Int’l Bank of Waco, 765 F.2d 1295, 1300 (5th Cir. 1985). This simply means that the individual must follow procedures for relief given to him or her by the relevant agency before seeking other options. Only after the individual has gone through these procedures and only after these procedures fail to provide relief can he or she sue the agency. In this case, Dr. Moss had to file a written appeal with Unum, and only after his written appeal was rejected could he sue Unum.

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chemistry-lab-2-1494465-1024x768Americans value their privacy. Yet in certain contexts, privacy is not absolute. For instance, an employer may order an employee to get a blood test if pertinent to a work-related incident, even if that employer is the government itself.

The Shreveport Police Chief gave such an order when the department received a complaint that one of its officers was intoxicated. Pat Hensley, the officer in question, was found by fellow officers driving in a state of intoxication. His slurred speech and inability to perform basic cognitive and physical tasks prompted the officers to arrest him for Driving While Intoxicated. While in custody, Hensley underwent a blood test at the order of the Shreveport Police Chief. However, there was no warrant for the blood test. The blood test was positive for alcohol in Hensley’s bloodstream. Hensley sued the City of Shreveport and the Police Chief for the warrantless blood test. He argued in the United States District Court that the warrantless blood test was a violation of his Fourth Amendment rights and his rights under the Louisiana State Constitution. The specific rights Hensley claimed the Police Chief and the City violated were the rights that protect citizens from unreasonable searches and seizures.

The Fourth Amendment states that the Government shall not violate “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const. amend. IV. The Louisiana State Constitution also has a provision similar to the above. Though we may generally think of these laws to apply to the searches and seizures of external, physical objects, the United States Supreme Court has ruled that a blood test counts as a search. See Maryland v. King, 569 U.S. 435, 446 (2013).

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image-3-1024x683After deciding to follow through with filing a lawsuit, one of the first questions asked is where to file. Venue is the county or parish that is applicable for your case to proceed. Filing in the proper venue is a determinative factor in moving forward with your case. There may be more than one appropriate venue for your case, but failure to choose correctly can cause ripple effects to the rest of your lawsuit.

Damion Comeaux and Austin Romero collided at an intersection in Vermilion Parish on June 9, 2012. Comeaux filed a lawsuit on May 16, 2013, in the East Baton Rouge Parish, naming defendants Romero (who was driving a police department car), Abbeville Police Department, the City of Abbeville, the Louisiana Municipal Association, and Zurich American Insurance Company. Comeaux alleged that he was injured when Romero failed to stop at a stop sign, causing the collision with Comeaux’s vehicle, and sought money for his bodily injuries, as well as associated general and special damages.

At trial, the City of Abbeville cited improper venue and the case was ultimately transferred to Vermilion Parish on the condition that the defendants waive any defense of prescription (statute of limitations). Prior to the trial court transferring the case, Comeaux filed an identical lawsuit in Vermilion Parish on July 1, 2013. Both the East Baton Rouge and Vermillion Parish cases proceeded at the same time, which identical filings in each district. The defendants objected to the condition to waive prescription and challenge the cause of action. The trial court ruled in their favor, and Comeaux appealed on prescription of his second filed lawsuit (in Vermillion Parish) and cause of action.

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tigers-2-1528804-1024x683The taking of property by the government under the power of eminent domain is an issue that can be contentious for many landowners. When this does happen landowners are entitled to just compensation. For one Louisiana man with property near the Superdome and across the street from St. Joseph’s Church, the power of eminent domain became very personal.

The Board of Supervisors of Louisiana State University (“LSU”) took land from Michael Villavaso for the purpose of building a new academic medical center. While the medical center has since been built, Mr. Villavaso was not satisfied with the compensation that he received for the property. Mr. Villavaso claims that the appraised value of his property was $247,000 ($33.00 per square foot), but he only received $172,000 from LSU. The appraisal for Mr. Villavaso was done by certified public account Charles Theriot, who had also done multiple appraisals for LSU related to the building of its academic medical school. Due to this difference in price, Mr. Villavaso sued LSU in civil district court in New Orleans demanding just compensation.

While his lawsuit was pending, LSU proceeded onto Mr. Villavaso’s property, demolishing multiple structures, and depriving Mr. Villavaso of income received from the parking at the location. This led Mr. Villavaso to adjust his claim and demand additional compensation, including lost income of $144,818.

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writing-kiddo-1432496-1024x683The worst thing that could happen if you are in a bad situation is for that situation to get worse. A New Orleans, Louisiana, resident found himself in that exact scenario when he was in legal trouble and subsequently found himself in even deeper legal trouble.

MT, the defendant, owned with his partners, a construction contracting company, Garner Services. When MT was the Chief Operating Officer, he and his brother-in-law, DF, created fictitious invoices for work never performed, amounting to $925,000 to a company that MT himself controlled.

After his fraud was discovered, MT was criminally charged with conspiracy to commit mail fraud, which he pled guilty to in exchange for no additional charges filed. The Government also informed MT that he would be indicted for concealing financial information to block the forfeiture of certain assets. Before the plea deal was signed, MT hired a private investigator, Tim Wilson, who spoke with two of the Assistant United States Attorney’s (“AUSAs”) for the Eastern District of Louisiana on MT’s behalf. Wilson stated the AUSAs promised not to execute on the forfeiture indictment. This “secret deal” was later contested by the AUSAs, who denied having made such a promise.

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barren-land-1177515-1024x683If you ever inherit land from a relative, it may be wise to investigate if anyone else has a claim to it. There may be a co-owner in the shadows waiting to sell it.  

Thirteen Plaintiffs claimed they were the heirs of the Willie Smith, the original owner of a property in Claiborne Parish, Louisiana. The plaintiffs alleged that none of them were served with process in a licitation lawsuit surrounding the property or were notified of the 2010 action. A licitation suit is a term used in Louisiana law to mean the process of partitioning property at an auction where the land is owned by multiple people. In 2010, LEWLA, LLC had filed a licitation suit to divide this disputed piece of land in Claiborne Parish. LEWLA’s lawsuit resulted in a judgment and sale of the land in 2011 to LEWLA. The plaintiffs sought to declare this judgment and resulting sale of the property as legally void (“nullity”). Plaintiffs also alleged a charge of “ill practice” by LEWLA in withholding known addresses or misleading the assigned attorney regarding any information about the absentee persons.

Under the Louisiana Civil Code, the rights of ownership in property is transmitted upon the owner’s death to his or her successors. La. C.C. art. 937; La. C.C. art. 938. Those successors may then exercise the rights of ownership to the property of the decedent’s estate. All informalities of legal procedure connected with any sale of real property are subject to a two-year statute of limitations from the time of the sale. La. R.S. 9:5622. Further, final judgments are annulled if rendered against a defendant who has not been served with process as required by law.  Louisiana law also requires an appointment of a curator attorney when the case involves ownership in property by an unopened succession or absentee nonresident.

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old-book-1423004-1024x768Many people think that if they make a will, the administration of their property after death will go smoothly, with no questions asked. This is not always the case. A Louisiana case out of Jefferson Parish dealt with one of these precarious situations.

After her husband, Anthony’s sudden death in 2005, Sharon Sylvester, found herself in a legal battle with Anthony’s first wife, Joyce Sylvester. Anthony’s will, which had been drafted four years before he married Sharon, stated, “Upon my death, after all just debts are paid, I leave and bequeath all things I may die possessed of to my four children, namely….”, and subsequently named the children of Anthony and Joyce. The will was never amended before Anthony passed away. Three weeks after Anthony’s death, Sharon filed a petition, containing a descriptive list of the assets of the estate and a copy of Anthony’s will, in Jefferson Parish.

Louisiana is a community property state. This means that property acquired during a valid marriage by either spouse or by both of them, is presumed to be community property that belongs to the “marital economic community.” On the death of one spouse, the surviving spouse gets half of the community property and the estate gets half. Property acquired before the marriage belongs to the spouse who acquired it.

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men-shaking-hands-1024x683A contract creates a level of trust between two businesses or individuals, but what happens when one individual fails to uphold their end of the bargain? Or worse yet, what happens when an individual purposefully misrepresents their ability to uphold their end of the bargain? These are issues the Louisiana Third Circuit Court of Appeal recently addressed in a lawsuit between Meyer & Associates, Inc. (“Meyer & Associates”) and the Coushatta Tribe of Louisiana.

The Coushatta Tribe of Louisiana is a federally recognized Indian tribe composed of an elected four-member Tribal Council and a separately elected Tribal Council spokesperson. The Tribe conducts all of its governmental and business matters from the offices in Allen Parish, Louisiana. In July 2001, the Tribe decided to enter into an agreement in order to better manage the Tribe’s casino facility in Kinder, Louisiana. The Coushatta Tribe agreed to enter into a consulting services contract with Meyer & Associates, a Louisiana corporation that provides professional engineering services to its clients.

In early 2002, the members of the Tribal Council and the vice president of Meyer & Associates, Richard Meyer, began discussions concerning the possibility to design and construct a facility for the casino’s general electricity, the individuals of the Coushatta Tribe, and potentially outside customers. Because Meyer’s & Associates did not have specific experience in this area, Mr. Meyer began assembling a team of experts to assist him. For the next several months, the project team began exploring the possibilities of developing the electric program. During the Tribal Council meeting on December 17, 2002, Mr. Meyer presented the most up-to-date study on the feasibility of the electrical project – this presentation gave the Tribal Council enough confidence to accept the project on the January 14, 2003 meeting. With this acceptance, a second agreement was written. This second agreement gave the Chairman of the Tribal Council the ability to negotiate and execute any new agreements with Meyer & Associates, and also stated that that the Tribe’s financial obligation to the project was $10,000,000 in addition to the $3,375,000 that was necessary for all the preliminary work.

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