Random Miscellaneous

What Happens When There is More Than One Claim to a Deceased’s Property?

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

courthouse_court_law_justice_0-scaled Losing a loved one is hard enough. What happens, however, when multiple people claim they have a right to the same property the decedent owns at the time of their death? Cases involving multiple parties and claimants can get tricky, especially when one claimant was the decedent’s spouse and the other was their descendant, as was the case in the following lawsuit.

After being killed in an accident in New Orleans, Tommie Varnado’s widow, Patricia Varnado, filed a wrongful death and survival action lawsuit against the Louisiana Department of Transportation and Development (DOTD). Although Patricia agreed to settle with DOTD, she died before the trial court signed a consent judgment memorizing the settlement. The trial court then signed a consent judgment ten days after Patricia’s death. Months later, Kenneth John Gaunichaux filed a motion to substitute himself as the plaintiff in place of Patricia, alleging the two were married at the time of her death and that he was entitled to recover the settlement proceeds. The trial court permitted the substitution, although, before the settlement distribution, the DOTD questioned the validity of the consent judgment, as it was signed after Patricia’s death.

Melvin J. Owens Jr. then filed a motion to vacate and set aside Kenneth’s motion for party substitution, instead alleging he should be substituted as the plaintiff in place of Patricia. In his motion to substitute party plaintiff, Melvin argued he was the sole heir of Patricia and was the proper party to represent her and to receive the damage award.

Louisiana Court Finds Interdiction Inappropriate for Acadia Parish Mother, Despite Son’s Objections

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

louisiana_park_stream_pond If an individual is unable to care for themself or manage their financial or business affairs, legal intervention in the form of interdiction may be appropriate. If a court finds interdiction to be warranted, it may assign another person to make decisions for the disabled. The following case demonstrates when a court may deny an interdiction assertion.

John Dupuis filed a petition for interdiction in Acadia Parish, asserting that his mother, Linda Dupuis, was incapable of being employed, driving, balancing her checkbook, or paying her bills. In his petition, John also noted that his father, Kenneth Dupuis, had recently passed away, that Kenneth had always taken care of Linda, and that John should be appointed curator of Linda. Although Linda filed a motion denying John’s allegations, she also sought the appointment of her daughter, June Dupuis, as curator if the court found interdiction appropriate. John then responded with additional grounds for interdiction: that Linda had mental illness and epilepsy.

The 15th Judicial District Court for the Parish of Acadia then appointed Dr. Eddie Johnson as an examiner to provide his opinion on whether Linda suffered from the infirmities alleged by John, the appropriateness of the interdiction, and if a less restrictive means of intervention was available. Dr. Johnson indicated in his report that Linda showed no signs of cognitive impairment, could make competent major life decisions and that interdiction would not be necessary.

What kind of Evidence is Needed to Prove Future Medical Benefits in a Medical Malpractice Lawsuit?

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

medical_instruments_examination_424729-scaled After a medical malpractice-induced injury, patients may need significant awards of damages to cover the expenses of a resulting disability. A case in Shreveport shows how to present substantial evidence of an ongoing need for care. It also helps answer the question; What kind of Evidence is Needed to Prove Future Medical Benefits in a Medical Malpractice Lawsuit?

In 2007, Dr. Anil Nanda operated on Barbara Wise to address weakness in her right shoulder. Unfortunately, during the surgery, Dr. Nanda accidentally made a small tear in the membrane covering the spinal cord. Although Dr. Nanda attempted to seal the tear, Barbara experienced ongoing post-surgical weakness in her upper and lower extremities. When Wise and her husband brought up her symptoms to Dr. Nanda at follow-up appointments, he told them that these complications were normal and would eventually go away. However, when the weakness persisted, Dr. Nanda ordered an MRI, which showed a spinal fluid leak putting pressure on Wise’s spinal cord. Although Dr. Nanda corrected the tear in a second surgery, Wise continued to suffer severe weakness in her extremities that required aggressive rehabilitation.

Wise filed a medical malpractice lawsuit against Dr. Nanda and Louisiana State University Health Sciences Center to recover the costs incurred due to her condition. She was awarded $1,355,740 for medical expenses and benefits between the injury and verdict, 2) $1,054,776 for future medical expenses 3) $517,000 for lost wages, and $250,000 for pain and suffering. LSU appealed the award of costs between the injury and verdict and lost wages.

When Can a Client Sue Their Former Lawyer?

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

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Negligent lawyers can get themselves into hot water by retaining confidential client documents. Often, this violation of professional responsibility will result in a malpractice suit.

The more egregious behavior, the more intensely the lawyer may find themselves being litigated against. For example, in the following appeal, a lawyer is sued from all angles as his former firm and his former client sue him to regain client files retained post-employment.

Thomas Glynn Blazier was fired from his job as an associate at a law firm in Lake Charles. The firm sued Blazier for damages, during which it became aware Blazier had kept confidential files, including those relating to client Elaine Marshall. When Marshall learned of Blazier’s actions, she intervened as both an individual and as the Estate to which the files related and fought to regain possession of the files. Blazier motioned against this intervention to no avail.

How the Louisiana Code of Civil Procedure Article 971, The “anti-SLAPP” Statute Used in Court

Published on: April 12, 2023 | By Berniard Law Firm

bear_wildpark_poing_play Rights, even those granted under federal and state constitutions, are not without limitations. As Yaroslav Lozovyy (“Lozovyy”), a former research assistant at Louisiana State University (“LSU”), discovered in an appeal of his lawsuit against an interim director, Richard L. Kurtz (“Kurtz”), and a vice chancellor, Thomas R. Klei (“Klei”), courts take allegations of making false statements seriously. The following case shows how the Louisiana Code of Civil Procedure Article 971, The “anti-SLAPP” Statute is used in Court.

While most statements are protected under the United States Constitution’s First Amendment Freedom of Speech Clause, courts have since deemed certain limited categories of speech unprotectable such as (but not limited to) fighting words, incitement, and obscenity. In addition, defamation, which is the communication of a false statement that harms the reputation of another, is another category of speech that is not protected under the U.S. Constitution nor Louisiana state law.

After being employed for over ten years as a research assistant on an annual contract-term basis at LSU’s J. Bennett Johnston Sr. Center for Advanced Microstructures & Devices (“CAMD”) in 2012, Lozovyy’s contract was not renewed, and his employment ended. Lozovyy subsequently emailed a fellow research collaborator, Peter Dowben (“Dowben”), a physics and astronomy professor at the University of Nebraska-Lincoln, stating that he heard a rumor that he was fired because he stole research data and Kurtz was therefore forced to fire him.

New Orleans police officer’s disciplinary violation is reversed

Published on: April 11, 2023 | By Berniard Law Firm

fbi_police_ford_interceptor-scaled Police officers are trained to enforce the law and are obligated to follow the law. However, when a police officer violates the rules of policing, the officer has a right to written notice and then the right to an appeal if he feels the punishment is unfair. The following case out of New Orleans shows how a police officer’s appeal of disciplinary action can overturn the department’s actions.

Officer Jones (Jones) and Officer Smith were sent to Canal Street due to a disruption at a bar. The officers were notified that Ms. Dana Earles broke another patron’s sunglasses while under the influence. The officers arrested Ms. Earles. While in the police vehicle, Ms. Earles recounted an unidentified officer had raped her at an unspecified time. The officers informed their superior of the arrest and Ms. Earles’s allegation.

An investigation was launched against Jones by the New Orleans Police Department (NOPD) and the Public Integrity Bureau (PIB) for his failure to abide by Rule 4, Performance of Duty clause of the Civil Service Commission (CSC). Jones was later reprimanded. Jones petitioned the reprimand.

FMLA Retaliation and Title VII Hostile Work Environment Claims Fail on Lack of Evidence

Published on: April 7, 2023 | By Berniard Law Firm

building_hospital_within_931281-scaled Some consider the workplace as their second home. It is a place where one can thrive intellectually and network simultaneously. However, when a workplace becomes hostile or sexually charged, it can make an employee’s life unbearable. Therefore, to bring a successful claim against FMLA and a hostile workplace, a plaintiff must prove all elements under FMLA and show proof the hostile environment affected their well-being.

Amy Smith (Smith) worked for Touro Infirmary (Touro) from 2008 to 2014 as a respiratory therapist. Smith claimed during her employment, her direct supervisor Larry Anderson (Anderson), sexually harassed her and created a sexually charged workplace. According to Smith, the female respiratory therapists who participated in Anderson’s advances were favored over those who did not comply.

Smith took medical leave under the Family Medical Leave Act (FMLA) while pregnant and was later terminated. Smith alleged her termination was due to her noncompliance with Anderson’s sexual advances. She claimed this because she believed she abided by Touro’s leave policy of reporting while gone and provided additional medical documentation when needed. In addition, Smith filed a discrimination claim with the Equal Employment Opportunity Commission (EEOC) and referenced her discriminatory workplace. The district court dismissed Smith’s case on summary judgment, and she appealed.

Unfair Trade Practices in Louisiana and Home Foreclosure

Published on: July 23, 2014 | By Berniard Law Firm

Like many states, Louisiana has an unfair trade practices act. In Louisiana, it is known as the Louisiana Unfair Trade Practices and Consumer Protection Law. Just as the name implies, this law is meant to protect consumers from the unfair, misleading, or fraudulent acts of those provide services, goods, and financing. Any contract or agreement entered into in violation of this law is void. However, the Louisiana Unfair Trade Practices and Consumer Protection Law (“Law”) has a serious limitation; it does not apply to a financial institution that is federally insured, including most banks and lending institutions.

The Law’s limitation means that an average mortgage arrangement from a large or national financial institution will not be affected by the protection that the Law affords. The United States Court of Appeals for the Fifth Circuit provides an example of this exception in a recent decision. In that case, a woman arranged for a home mortgage through Bank of America. Bank of America then assigned the mortgage to Wells Fargo. Both of these companies are large financial institutions that are federally insured.

When the woman defaulted on her mortgage, Wells Fargo sought to foreclose on her home. She applied for assistance from a federal government program called Home Affordable Modification Program (“HAMP”) during the foreclosure process. HAMP is designed to help modify mortgages for those who are in foreclosure proceedings so that they can keep their homes and pay a more affordable monthly payment. While the woman’s HAMP application was pending, the foreclosure proceeding was supposed to be put on hold. However, despite this application, her home was sold at a foreclosure sale before she received word back from HAMP to determine whether he application had been approved. She also claimed that she did not receive notice of the sale. Essentially, she argued that her home was sold out from under her without her knowledge.

She attempted to sue both Bank of America and Wells Fargo. She argued that Bank of America should not have allowed Wells Fargo to purchase the mortgage. She also argued that the foreclosure proceedings violated the Louisiana Unfair Trade Practices and Consumer Protection Law. However, the state court determined that even if they did violate the Law, the Law did not apply to them because of the financial institutions exception.

After a loss in state court, the woman appealed the case to the federal district court. However, the district court pointed out that it cannot sit as a court of appeals for state-exclusive actions. That means that the federal district court cannot hear a case where the only arguments are based on state law. Instead, a district court can only hear a case where there is some sort of federal jurisdiction based on either federal law or involves parties from different states, unless Congress has authorized the district court to act otherwise. Nonetheless, where a case questions the procedures of the state court, instead of applying substantive state law, then the federal court could hear the case. For example, if the woman argued that he procedure violated her constitutional rights, then the district court would likely be able to hear the case. This concept is known as the Rooker-Feldman doctrine. As the court explains, “Reduced to its essence, the Rooker-Feldman doctrine holds that inferior federal courts do not have the power to modify or reverse state court judgments except where authorized by Congress.”

In this case, the woman complained that the proceedings in the state court were incorrect; therefore, she was not just asking the district court to review the state court decision. As a result, the district court had the authority to review the case. Despite that fact, the woman failed to state a claim because both Bank of America and Wells Fargo are federally insured financial institutions that are not subject to the Louisiana Unfair Trade Practices and Consumer Protection Law. That meant that the Court of Appeals had to affirm the lower court, and the woman failed in her efforts to appeal.

It may have been possible to assert other arguments based on federal law, but the woman failed to do so. In fact, there were several arguments that the woman waived because she failed to timely assert them. In an appeal, if you do not assert every argument that you have in your opening brief, then you effectively lose the ability to use that argument at any point in the rest of the appeal. In this case, this may have been crucial to the woman’s case because she failed on the arguments that she presented originally (the state law claims). That point highlights the importance of competent attorneys who can argue effectively for you. Continue reading

Careful Review of Home Insurance Policy Crucial

Published on: July 14, 2014 | By Berniard Law Firm

It is extremely important to review your home insurance policy to determine what types of damages the policy will actually cover, especially in areas prone to suffer from hurricane damages. Under Louisiana law, the insured individual is required to first prove that the insurance policy covers the cause of the claim. For example, if the policy only covers certain types of causes of damage, such as wind and hail, then the insured must prove that the damage was in fact caused by either wind or hail. Once the insured has done this, then the insurance company can argue that the incident is not covered by the policy. Therefore, it is extremely important that the insured take the time to determine the cause of the damage in order to prove that the policy covers their claim.

A case arising from Lake Charles, Louisiana illustrates this point. In this case, a homeowner suffered roof damage that they believed was caused by Hurricane Ike around September 13, 2008. Four shingles were missing and the insured claimed that this resulted in leakage in several rooms of the home. However, State Farm, the homeowner’s insurance company, determined that the leakage was not caused by Hurricane Ike and reclassified the claim as a “non-hurricane” claim.

State Farm, using several experts, determined that the leakage resulted from normal wear and tear on the roof, and therefore the homeowner’s insurance policy did not cover the leakage damage. Instead, State Farm concluded that only the four missing shingles were the result of wind and that they were the only damages that State Farm should reimburse to the insured; State Farm did not reimburse the insured for the damages caused by the leakage, but just the replacement value of the four damaged or missing shingles. The total damages that State Farm paid were under $500.00.

The insured had damages that were estimated at $9,385.00 by one expert and $204,717.78 by another expert. However, while these experts estimated what the cost of the leakage damage and repairing the roof would be, neither expert determined the actual cause of the damages. One of the insured’s experts thought that the wind had lifted the house’s flat roofing, which allowed water to enter the home. However, the expert could not explain why the nails on the flat roofing were still in place if the wind had lifted it. The State Farm expert, on the other hand, determined that the wind damage only included those four damaged or missing shingles and the leakage was actually caused by normal wear and tear. The State Farm expert concluded that there was “no evidence of roof damage that would be caused by severe weather . . . . The roofs, both asbestos shingle and built up roofs and all associated flashings are past their life cycle and are in need of replacement.”

The insured’s policy did not cover “poor workmanship; wear, tear, deterioration, or latent defect; settling, cracking, or expansion of walls, roofs, or ceilings; or leakage of water from air conditioning systems, household appliances, or plumbing.” Since the State Farm expert determined that the cause of the damage was from normal wear and tear, there was no way that the insured could satisfy the requirement to prove that the policy covered his claim. As such, the court granted State Farm summary judgment.

The court will grant summary judgment where one party cannot meet their required burden as a matter of law at trial. Summary judgment allows the court to avoid costly trials where there is one clear winner before the trial even begins. In this case, where the insured had no evidence that all of the damage he was claiming was caused by an occurrence included in the insurance policy, the court determined that summary judgment was appropriate. If the insured had employed experts that specifically testified as to the cause of the leakage damage, then the court may have allowed the case to proceed to trial. Further, the insured could have made a more diligent effort to report leakage as it occurred, which would help prevent the damage from spreading in the long run.

This case illustrates several very important points for the average homeowner. First, you should carefully read your policy so that you know what type of damage is covered. Second, if necessary, you may need to acquire experts that can explain what caused the damage to your home. Lastly, report damages immediately so that you can avoid costly repairs later on. Continue reading

District Courts Have Broad Discretion When Ordering IRS Debt Payments

Published on: July 9, 2014 | By Berniard Law Firm

In an appeal filed in the United States Court of Appeals for the Fifth Circuit, from the Western District of Louisiana, the Court affirmed a district court verdict ruling in favor for the IRS. The Plaintiff, S.P. Lewis was ordered to pay monthly installments to the government to pay for taxes withheld from employee’s wages while S.P Davis and three other people were equal owners of the Winward Institute, Winward Heath Care Center, and Mynex. These three entities provide medical services to Louisiana patients. In 1997, these owners became aware that the companies were not paying enough federal payroll taxes. The owners asked the vice president of finance, Samuel Stevens, to negotiate with the IRS but the debt was never corrected.

In 2002, The IRS caught up with the companies and issued assessments against the owners for unpaid payroll taxes. Davis paid what he felt was his portion of the debt and then filed for a refund with the IRS. His claim was denied. In District Court, the government won the argument that the owners and Stevens were responsible people who had the opportunity to cure the dabt long ago. Because the owners and Stevens all had knowledge of the debt, and the opportunity to address the situation prior to suit, the owners and Stevers were considered equally responsible.

The government typically garnishes debtor’s wages in this situation. However, if the person in debt recieves income not exempt from taxes, the district court may order the person in debt to make payments instead of garnishing wages. When the Court established monthly payments against all counter-defendants, only Davis refused to pay. Davis did not want to pay the amount per month ordered by the government. Davis argued that the government was making him pay far too much each month. He argued the government was determining the monthly amount on a period in time when Davis had a much higher income. Davis also argued that the court had not properly considered his personal circumstances including the costs associated with earning his self-employment income.