Property Rights

Who Has a Right to Keep a Deposit in Failed Home Sale if the Financing Contingency Fails?

Published on: August 8, 2023 | By Berniard Law Firm

home_villa_building_dream Buying a house can often lead to significant stress, particularly due to the substantial financial commitments involved. A prevalent feature in real estate contracts is known as a “contingency.” One notable example is the financing contingency, which stipulates that the sale of a property is dependent on the buyer successfully obtaining a fitting mortgage. However, an intriguing scenario emerges: What transpires if a contract with a financing contingency unravels after the buyer has already submitted a deposit? The ensuing question arises – who rightfully lays claim to this deposited amount? The forthcoming legal case delves into this intricate web of uncertainties, providing insights that shed light on the matter.

Andrea Saltau-Talbot wanted to buy a residential property in Alexandria, Louisiana. She entered an Agreement to buy the property and extended the closing date twice, but the sale never went through. Talbot and the sellers claimed they were entitled to the $30,000 deposit she had provided under the Agreement. The Agreement contained a financing contingency, but the blanks for the specific conditions included a “TBD.” Talbot claimed she had been unable to secure suitable financing, so she was entitled to have the deposit returned to her.

A lawsuit followed to determine who was owed the deposit. After a hearing, the trial court ruled the Seller was entitled to the deposit because Talbot had not proved she had made a good faith effort to obtain financing. Talbot appealed.

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.

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.

What amount of force is allowed when restraining an inmate?

Published on: July 22, 2023 | By Berniard Law Firm

prison_robben_island_south-scaled The burden of proof lies heavily on claimants to establish the elements of the claim they bring forward. Failing to do so can result in the dismissal of the charge. In the case of George Preston, a prisoner in a Louisiana jail, his complaint against Lieutenant Hicks and four state correctional officers for excessive use of force highlights the importance of meeting the requirements to substantiate a claim. Analyzing the alleged violation of Preston’s Eighth Amendment rights, the court carefully considered the evidence and ultimately decided to dismiss some claims while allowing others to proceed.

George Preston, a prisoner in a Louisiana jail, filed a complaint against Lieutenant Hicks and four state correctional officers for excessive use of force, violating his Eighth Amendment rights. The incident occurred when an officer opened an inmate’s cell. When the door opened, Preston rushed in and allegedly tried to hit the prisoner. The Sergeant on duty called for help from Lieutenant Bowie, Lieutenant Hicks, Sergeant Dauzat, and Sergeant Augustine. The officers then worked together to restrain Preston.

Preston claimed Lieutenant Hicks knocked him to the floor and elbowed him repeatedly in his face. While on the floor, Sergeant Augustine pinned his left arm behind him while Lieutenant Hicks pulled and twisted his right arm. Preston alleged Hick’s actions caused his shoulder to dislocate. Preston claimed he only entered the cell as a joke and that the officer retaliated excessively.

Louisiana Inmate Failed to Establish Deliberate Indifference to Serious Medical Needs

Published on: July 18, 2023 | By Berniard Law Firm

prison_prison_window_window-scaled When a prison official fails to provide necessary medical care to an inmate, legal action may be pursued against the individual. However, claiming deliberate indifference to an inmate’s serious medical needs requires meeting specific criteria. As exemplified by the case below, these factors are crucial in preventing individuals from bringing frivolous claims against government officials, ensuring that legitimate cases receive the attention they deserve.

In this case, Gregory Bailey, a Louisiana prisoner, filed a lawsuit against several defendants, including East Baton Rouge Parish Prison, the prison warden, the 19th Judicial District Court for East Baton Rouge Parish, a judge, and Dr. Vincent Leggio, alleging acts of deliberate indifference to his serious medical needs. The U.S. District Court for the Middle District of Louisiana dismissed Bailey’s claims, stating a failure to state a claim upon which relief can be granted under Federal Rule of Civil Procedure 12(b)(6) and summary judgment under Federal Rule of Civil Procedure 56(a). This appeal to the U.S. Fifth Circuit Court of Appeal follows.

In his appeal, Bailey moved to progress in forma pauperis, thereby challenging the District Court’s decision that his appeal was not accepted in good faith. The Court of Appeal then reviewed Bailey’s good faith claims regarding whether his legal points were substantiated on their merits and not frivolous. See Howard v. King.

Dealing with Flood Damaged Property? Be Prepared to Show Causation

Published on: July 15, 2023 | By Berniard Law Firm

flood_fields_pasture_trees-scaled The story of an underdog seeking justice against a powerful corporation is a familiar legal narrative. And while we may be inclined to root for the little guy, that does not relieve him from proving he has a valid case.

In Louisiana, a plaintiff will not see his case go to trial if it lacks support to overcome a motion for summary judgment. The opposing side will look for holes in the plaintiff’s claim, posing the question: if you have not produced facts suggesting I committed this offense, how will you obtain the requisite evidence to prove it at trial? Accordingly, every “essential element” of a claim requires factual support to serve as a basis for deliberation at trial. La. C.C.P. art 996(c)(2).

The Mitchells, owners of a Shapes Gym in the Parish of Ascension, faced this “make it or break it” moment of summary judgment in their case against neighboring businesses, Wal-Mart, and Aaron’s. The Mitchells alleged that the neighbors’ improperly designed and maintained stormwater drainage systems were to blame for six inches of rainwater that flooded the gym in 2009 and again during litigation of the first flood claim in 2014.

The Importance of Changing a Life Insurance Beneficiary After Divorce

Published on: July 10, 2023 | By Berniard Law Firm

car_divorce_netherlands_joke-scaled Divorce can be tumultuous, marked by significant stress and numerous life changes. Amidst the emotional and practical adjustments, it is crucial not to overlook a critical task: updating the beneficiary of your life insurance policy. In Claiborne Parish, a compelling case serves as a cautionary tale, underscoring the paramount importance of understanding and verifying your designated beneficiary on all insurance plans. The story unravels the unsettling reality that the proceeds from your life insurance policy may not end up in the hands of the intended recipient.

In this case, Hillie Patrick Cox took out a whole-life insurance policy with Southern Farm Bureau, where he listed his mother, Ruby G. Cox, as a beneficiary. Later, he amended the beneficiary to list his wife, Connie Gonzales Cox. Seven years later, however, Hillie and Connie obtained a divorce judgment. Hillie then died approximately 14 years later without executing another change of beneficiary form.

Southern Farm Bureau subsequently filed a petition for concursus in the 2nd Judicial District Court for the Parish of Claiborne, claiming that a judgment of possession awarded Ruby usufruct over the entire estate and recognized Debra Cox Diffey, Hillie’s sister as the sole surviving heir. As a result of the judgment, Ruby, Debra, and Connie all presented claims for the insurance proceeds.

Time Limitations for Lawsuits: Paternity Claims in Succession Cases

Published on: July 8, 2023 | By Berniard Law Firm

time_clock_movement_motion-scaled Although there is a common saying, “good things come to those who wait,” that is not true in the context of filing lawsuits, especially if they involve establishing paternity after your purported father passed away. Louisiana law has strict requirements that establish the time by which you must file a lawsuit. Your lawsuit will be dismissed if you do not comply with these requirements. What happens if the law governing how long you have to bring your lawsuit changes?

William Dalton Pelt died without a will at his Vernon Parish, Louisiana home. His brothers and sisters filed a petition to have Barbara Lee Pelt Cooley appointed as administratrix of his succession. In the petition, they claimed Pelt had never been married and had no children. The trial court signed an order appointing Cooley as administratrix of his succession. Later, Kristina Wright petitioned to intervene in Pelt’s succession, claiming he was her father. Wright claimed her mother had had an affair with Pelt, and she was conceived during their relationship. She wanted recognition for her rights to Pelt’s estate and to have Cooley removed as the administratrix.

Pelt’s brothers and sisters filed an exception of prescription. At a hearing, the trial court agreed with Pelt’s brothers and sisters and dismissed Wright’s petition. Wright appealed, claiming the trial court erred in not correctly applying La. C.C. art. 197 to establish paternity.

Resolving Family Business Disputes: Navigating Complexities and Seeking Resolution

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

family_family_posing_psychotherapy-scaled Family businesses can present challenging legal issues. Although you might feel like you can trust your family members to do the right thing, this is not always true, especially when large sums of money are involved. This case illustrates the complexities that resulted from agreements related to ownership of a family business, which was only resolved following multiple appeals.

Sam Broussard Jr. (BR) and his three sisters each owned 25% of Sam Broussard Trucking (“SBT”). After their parents died, BR was the president of SBT. His sisters agreed to make him the majority owner of SBT. Each sister received a Stock Redemption Agreement (“SRA”). Under the SRA, each of the three sisters agreed to transfer 171.5 shares of SRT stock back to SRT for $200,000.

One of his sisters, Guillory, filed a lawsuit against BR, claiming he had not kept his promises related to the SRA. At trial, the jury found BR had not given Guillory sufficient profits, as promised. The jury also found BR had violated the Louisiana Unfair Trade Practices Act, La. R.S. 51:1401. The jury awarded Guillory $69,084 for this violation. The jury also found Guillory’s error concerning the SRA invalidated it.