Legal Definitions

Tutrix Was Proper Party To Bring Legal Malpractice Claim On Behalf of Minor

Published on: August 3, 2023 | By Berniard Law Firm

court_justice_munich_bavaria-scaled A minor is generally unable to bring a lawsuit on their behalf. As seen in the following case, this can lead to disputes about who the proper party is to bring a lawsuit for the minor.

Shannon Jones and Jennifer Brunelle filed a lawsuit against healthcare providers, the manufacturers of a device used in surgery, and loss of consortium claims for their daughter, Haley Jones. They retained an attorney, Gary Roth, to represent them. They settled the medical malpractice claim against one of the defendants. Brunelle received letters appointing her as natural tutrix for their minor daughter, Haley Jones. They then filed a petition in the medical malpractice lawsuit to approve the settlement, which the court granted.

Brunelle then discharged Roth as her attorney and retained attorneys at the Gainsburgh firm. With the new representation, they settled with the medical device manufacturer. The settlement was not finalized until months later. Brunelle claimed her attorneys had committed legal malpractice while negotiating the settlement agreement and caused delays in finalizing it. After extensive disputes related to the underlying facts in the case, the trial court eventually granted the Roth defendants summary judgment motion. It dismissed Brunelle’s legal malpractice claims against the Roth attorneys. Brunelle appealed, claiming the trial court erred in dismissing her claims.

Louisiana Court Holds Mortgage Without Legal Description Of Property Invalid

Published on: August 2, 2023 | By Berniard Law Firm

private_property_sign_posted-scaled The world of mortgages can be daunting, especially when it involves your most significant asset – your home. This is especially true when there are multiple property owners, or there have been multiple transactions and conveyances of this property. Ensuring the validity of a mortgage is paramount, and as the following case demonstrates, strict requirements must be met to safeguard property owners’ rights. It also helps answer the question; What happens if a mortgage is recorded without a legal description of the property?

Marjorie Porter received full ownership of a property as part of her divorce settlement with her ex-husband. Decades later, Porter allegedly made an act of donation of half of the property to her daughter, Sandie Parkman. Porter allegedly executed a mortgage on the jointly owned property. A few days after the mortgage was signed, Parkman attempted to donate her interest to her mother. However, her mother never accepted the donation and subsequently died.

Ocwen Loan Servicing LLC then filed a lawsuit to recognize the validity of the mortgage Porter had executed. Ocwen named Parkman as a defendant as well as Porter’s succession. Parkman argued Ocwen did not have a cause of action because there was no valid mortgage. She claimed the mortgage was partly invalid because it did not include a legal description of the at-issue property in the document recording the mortgage. The trial court denied Parkman’s motion. Parkman appealed.

Louisiana Appellate Court Cannot Review Merits Of Case Without Final Valid Judgment

Published on: August 1, 2023 | By Berniard Law Firm

fire_house_burns_cemetery-scaled Mistakes are inevitable in human experiences, but some mistakes can have significant legal consequences. Just like regular folks, courts are infallible and make mistakes as well. What happens when a court fails to include all required information in a judgment? Such a failure creates confusion and can impede the appeals process and delay justice for the parties involved, as seen in the following case.

Unfortunately, a house fire occurred at the home where Thomas Bayer and Laura Kelley resided. The fire resulted from a gas explosion that occurred while employees of Cimarron Underground were working on a gas meter on the property. They cut a gas line, resulting in a fire. As a result of the fire, Bayer and Kelly had to vacate their property for several weeks while the house underwent repairs.

Bayer and Kelly filed a lawsuit against Cimarron Underground, their insurance company Starr Indemnity & Liability, and others, claiming the defendant’s negligence caused the fire and resulting injuries and inconvenience. Cimarron Underground filed a summary judgment motion. The trial court held a hearing, where it orally granted Cimarron Underground’s summary judgment motion.

Workers’ Compensation Settlements: Protecting Your Social Security Benefits and Rights

Published on: July 31, 2023 | By Berniard Law Firm

workers_road_workers_site-scaled Settling a lawsuit can have many far-reaching effects. Not only will it result in the dismissal of your lawsuit, but it could also affect things such as your social security benefits. Therefore, it is important that you consult with an attorney and carefully consider if a settlement is in your best interest. Additionally, as seen in this case, if you accept a settlement offer, you must ensure the related court order includes all required aspects so you do not have to deal with unintended consequences.

Kenneth Clark and his employer, Walgreens, reached a settlement related to Clark’s workers’ compensation claim. A workers’ compensation judge approved the settlement and entered a judgment dismissing the claim. Clark then petitioned the workers’ compensation judge to amend the judgment to include language to divide the indemnity part of his settlement across his lifetime. This proposed amendment would not change the total amount of the settlement. Clark wanted this amendment so the Social Security Administration could pro-rate the settlement so it could calculate the required disability offset. Walgreens objected to this amendment. After a hearing, a workers’ compensation judge entered an amended order reflecting Clark’s requested language. Walgreens appealed.

On appeal, Walgreen argued the trial court did not have jurisdiction to amend the initial order approving Clark’s settlement with Walgreens. La. R.S. 23:1272 governs the settlement of workers’ compensation claims. This statute has many safeguards for preventing an employee from being pressured to improperly settle his or her claim. Courts are to liberally construe workers’ compensation law in favor of workers to protect them from the burden of workplace injuries.

Can A Sexual Harassment Claim Succeed Where Boss Instructs Employee To Date A Prospective Client?

Published on: July 30, 2023 | By Berniard Law Firm

office_chair_meeting_room-scaled When you think about sexual harassment claims, the first thing that likely comes to mind is a superior harassing another employee. However, what happens if the superior instructs another employee to date a prospective client?

Tyanne Davenport was hired to be the administrator at an Edward Jones Office. On multiple occasions, the office owner insulted, shouted at, and used profanity to describe Davenport. The owner’s comments eventually became sexual in nature. When the owner learned a wealthy prospective client wanted to date Davenport, the owner told Davenport to date the prospective client to receive a big bonus. Davenport said she already had a boyfriend and was not interested in dating the prospective client. The owner told her this about three additional times within the next month. One of the financial advisors made a comment about Davenport sending the prospective client some nude photos, which embarrassed and offended Davenport. Davenport never dated the prospective client.

Davenport reported the incident with the comment about nude photos to the district manager, who forwarded the complaint to an associate relations representative. Davenport filed a charge with the Equal Employment Opportunity Commission (“EEOC”). Although she referenced the incident involving comments about nude photos, she did not reference the manager’s offers to pay her a big bonus if she dated the prospective client. Over the next few months, Davenport met with a therapist who advised the company Davenport should not go back to the same office because of trauma from the incidents. She requested a transfer to another office, which was denied. Davenport eventually resigned.

Harvey Man Denied Damages For Truck Falling On Foot, Importance of Proof in Lawsuits

Published on: July 29, 2023 | By Berniard Law Firm

feet_tangerm_c3_bcnde-scaled If part of a car falls on you at a vehicle yard, you should be able to recover damages for your injuries from the yard owner. However, if you do not provide sufficient evidence, you will likely be unable to recover for your injuries.

While Rico Lee was a customer at a Pull-A-Part vehicle yard in Harvey, Louisiana, he was injured when the rear of a pickup propped up on rims fell on his foot. He filed a lawsuit against Pull-A-Part and their insurer, claiming he was injured when the pick-up truck in Pull-A-Part’s control and control fell on his foot, injuring him. At trial, the jury found Pull-A-Part was not negligent. Lee appealed.

On appeal, Lee argued the jury erred in finding in favor of Pull-A-Part, and the trial court erred by not instructing the jury about res ispa loquitor. Res ispa loquitor is a legal doctrine that allows a court to find negligence by the mere fact that the accident occurred by using circumstantial (not direct) evidence. See Cangelosi v. Our Lady of the Lake Reg’l Med. Ctr. Here, La. C.C. art. 2317.1 required Lee to show the truck was in Pull-A-Part’s custody or control; it had a defect that resulted in an unreasonable risk of harm, Pull-A-Part knew or should have known about this unreasonable risk, and the defect caused his injury.

How To Determine Personal and Subject Matter Jurisdiction in Car Accident Lawsuit

Published on: July 28, 2023 | By Berniard Law Firm

district_court_h_c3-scaled If you’ve been involved in a car accident and are considering filing a lawsuit, it’s essential to be aware of one crucial aspect often overlooked – the appropriate court venue. Venue refers to the location where a lawsuit is filed, and getting it right is crucial for the court to have jurisdiction, granting it the legal authority to issue judgments in the case.

Cea Tillis was involved in a car accident on Frenchmen Street. He filed a lawsuit against the driver of the other vehicle involved in the accident, Jamal McNeil, and his insurance company (the defendants) in the Second Parish Court for the Parish of Jefferson. Tillis asserted Jefferson Parish was the proper venue under La. C.C.P art. 74, which allows a lawsuit to be brought in the location where the accident occurred or where the damages were sustained.

McNeil countered Jefferson Parish was not the proper court because the accident occurred outside the court’s jurisdiction, and Tillis did not live in the applicable area. The defendants argued the court did not have personal or subject matter jurisdiction and could not enter a judgment in the case. The Second Parish Court eventually transferred the case to the First Parish Court. The First Parish Court ruled in favor of the defendants, finding there was no personal or subject matter jurisdiction. The court then dismissed Tillis’ lawsuit, and he appealed.

Terminated Employee Not Entitled to Additional Unpaid Wages

Published on: July 27, 2023 | By Berniard Law Firm

worker_inspects_construction-scaled Getting terminated from a job is always a stressful situation. You are likely concerned about how you are going to make ends meet. This is even more true if you believe your former employer has not paid you all the wages you are entitled to.

Rick Calamia worked for Core Lab for under a year. He was terminated from his job. He claimed he was owed various unpaid wages, which Core Lab denied. Calamia filed a lawsuit against Core Lab under La. R.S. 23:631 for his purportedly unpaid wages and associated penalties, fees, and costs. Calamia claimed he was owed $1,808.16 for 73.8 hours of work, consisting of 7 hours of time entry pay, 16 hours of holiday pay, 49 hours of PTO, and 3.34 hours of Extended Illness Break hours, as well as 90 days of penalty wages.

Core Lab argued Calamia had been paid everything to which he was entitled. One of the witnesses at trial was Cerly Watson, Core Lab’s payroll manager. She testified about the payroll procedure at Core Lab, including the two-week lag between when an employee submits a timecard and when it is reconciled on a pay statement. She testified about Calamia’s pay statements that were at issue in the lawsuit and explained how the discrepancies were later reconciled. At trial, the court ruled in favor of Core Lab and found Calamia was not entitled to additional wages. Calamia appealed.

What Constitutes a Violation of a Prisoner’s Constitutional Rights?

Published on: July 26, 2023 | By Berniard Law Firm

prison_jail_cell_cell_0-scaled Prisoners, like all individuals, retain their constitutional rights even while incarcerated. However, proving a violation of these rights within the prison system can be challenging, as demonstrated in the following case. This case considers what a prisoner must show to succeed in a lawsuit against a prison supervisor alleging a constitutional violation.

Kyle Smith Hauenstein was imprisoned at Rapides Parish Detention Center -1 (“RPDC-1”). He filed a lawsuit against the Rapides Parish Sheriff, William Hilton, and the Assistant Warden, Pat Ashley. He alleged Hilton and Ashley violated 42 U.S.C. § 1983 by delaying providing him adequate medical treatment after his right foot developed an infection. He claimed they were “deliberately indifferent” to his serious medical needs.

Sheriff Hilton filed a summary judgment motion, arguing qualified immunity prohibited the Section 1983 claims from being brought against him in his individual capacity. The trial court denied Sheriff Hilton’s summary judgment motion, finding qualified immunity did not prohibit Hauenstein from bringing the Section 1983 claims against Hilton in his individual capacity. Hilton appealed.

Duck Dynasty Prevails In Beverage Dispute Because of Ambiguous Contractual Term

Published on: July 25, 2023 | By Berniard Law Firm

ducks_duck_duckling_bird-scaled Even celebrities must deal with the often mundane task of negotiating and signing contracts. Although it can be tempting to sign a contract without reading it in depth or consulting with a lawyer, this case illustrates the importance of understanding every term and condition of a contract because of the complexities that can arise if there are ambiguous terms.

Duck Commander Inc. is owned by the Robertson family, who starred in the reality TV show Duck Dynasty. Initially, they made and sold duck calls and other related equipment. However, they ventured into the beverage industry partly because one of the family members, Si Robertson, liked iced tea. Subsequently, Chinook USA (a company that manufactures bottles and sells ready-to-drink beverages) and Duck Commander entered into a Licensing Agreement where Chinook would distribute Duck Commander branded iced tea.

After Duck Commander signed the agreement with Chinook, Duck Commander signed two other contracts involving beverage sales. The first contract was with Go-Time Energy, where Go-Time Energy had the three-year exclusive right to manufacture, license, and sell Duck Commander-branded energy shots. Duck Commander also agreed with Checkered Flag to sell Duck Commander-branded vitamin water.