Plaintiffs filed suit against the defendants; after suit was filed, three years past in which no action in fur-therance of the prosecution occurred. After abandonment was raised, the plaintiffs argued that the defendants “continually acknowledged” the plaintiffs’ claims in a bankruptcy suit the defendants filed after the three-year abandonment period had already elapsed. Held: The plaintiffs failed to present any evidence that the defendants recognized the plaintiffs as creditors in the bankruptcy proceeding. The plaintiffs’ claims were thus abandoned. Luquette v. Samson Contour Energy E & P, LLC, Third Circuit, NO. CCA 19-337 (11/6/19). http://la3circuit.org/Opinions/2019/11/110619/19-0337opi.pdf  

La. C.C.P. art. 561(B) provides that any formal discovery and served on all parties, whether or not filed in the record, shall be deemed to be a step in the prosecution or defense of an action. In this case, even if an attorney’s letter could be considered formal discovery, there was no evidence that the letter was served on all of the parties. Thus, the letter was insufficient to interrupt abandonment. Truitt v. Graco, Inc., Fifth Circuit, 19-CA-121 (11/20/19). http://www.fifthcircuit.org/dmzdocs/OI/PO/2019/9DB4F485-A8DE-4AC1-BDEB-547140D10221.pdf?dt=191120

The Attorney General filed suit against the Vermilion Parish School Board, the Superintendent, and the indi-vidual school board members seeking to enforce the Open Meetings Law, La. R.S. 42:15, in regard to a meeting regarding the superintendent’s contract. The individual defendants, including the superintendent, filed exceptions of no cause of action. The district court granted the superintendent’s exception and dismissed all “actions, claims, demands, issues or theories asserted” against him. The trial court ruled against the School Board, enjoining it to adhere to the Open Meetings Law, and rendering null and void all actions taken at the contested meeting, including the decision on the superintendent’s contract. The superintendent sought to appeal the district court’s judgment as a third person with the right to appeal pursuant to La. C.C.P. art. 2086. Held: The district court’s ruling dismissing all claims against the superintendent included an implicit determination that the superintendent was not an indispensable party pursuant to La. C.C.P. art. 641. Thus he was not a third party with a right to intervene in the appeal. Landry v. Duplechain, Third Circuit, No. CA 19-457 (11/6/19) http://la3circuit.org/Opinions/2019/11/110619/19-0457opi.pdf

In cases with multiple plaintiffs or defendants, the failure to name the plaintiff(s) or defendant(s) for or against whom the judgment is rendered makes the judgment fatally defective because one cannot discern from its face for or against whom it may be enforced. Mizell v. Willis, First Circuit, 2019-CA-0141 (11/15/19). https://www.la-fcca.org/opiniongrid/opinionpdf/2018%20CA%200500%20Decision%20Appeal.pdf

A judgment which grants a motion for summary judgment, but does not dismiss any party, and dismisses plaintiff’s claims but does not indicate against which defendant, is defective and not appealable on its face. Marrero v. L. Manheim Auctions, Inc., First Circuit, 2019-CA-0365 (11/19/19). https://www.la-fcca.org/opiniongrid/opinionpdf/2019%20CA%200365%20Decision%20Appeal.pdf

The trial court properly found that the defendant in contempt for failing to vacate property pursuant to a court order, and upheld fines in the amount of $500 plus $50 a day for every day she remained on the property following the contempt order. Treas v. Koerner, Fourth Circuit, No. 2019-CA-0390 (11/13/19). https://www.la4th.org/opinion/2019/477943.pdf

On a ruling for involuntary dismissal, the trial court is not required to review the evidence in the light most favorable to the plaintiff. Rather, it need only weigh and evaluate all the evidence presented up to the point of the motion for dismissal. The trial court is afforded great weight in this decision. In this case, the plaintiff failed to prove by a preponderance of the medical evidence that exposure to pesticide at his condominium complex caused the medical conditions that he claimed. Thus, the trial court did not err in involuntarily dismissing the plaintiff’s claim for injunctive relief against future pest control treatments. Newburger v. Orkin, L.L.C., Third Circuit, No. CA 19-383 (11/6/19). http://la3circuit.org/Opinions/2019/11/110619/19-0383opi.pdf

The trial court did not abuse its discretion in concluding that doctor’s testimony as to future medical care was not outside the scope of the reports produced. Nor was doctor’s testimony about future medical care outside the scope of his area of expertise as a neurosurgeon. Giavotella v. Mitchell, First Circuit, 2019-CA-0100 (10/24/19). https://www.la-fcca.org/opiniongrid/opinionpdf/2019%20CA%200100%20Decision%20Appeal.pdf

La. C.C.P. art. 2635 no longer requires every portion of the executory process packet to be in authentic form. Tanner v. Succession of Bourland, Second Circuit, 52,918-CA (11/20/19). http://www.la2nd.org/archives/docs/31d18e.pdf

La. C.C.P. art. 3607 specifically allows for the modification of a preliminary injunction, and the trial court is not divested of jurisdiction to modify a preliminary injunction while the matter is on appeal. In this case, the evidence substantiated the defendant’s continual violations of the preliminary injunction, which dictated the need to clarify and modify the injunction to prevent further irreparable harm to the plaintiffs. The trial court found that the modifications were necessary to ensure that further violations did not occur, and thus it was within its discretion to modify the preliminary injunction. Forrester v. Bruno, Fourth Circuit, No. 2019-CA-0359 (11/6/19). https://www.la4th.org/opinion/2019/477608.pdf

An order granting either a preliminary or a final injunction or a temporary restraining order shall describe in reasonable detail, and not by mere reference to the petition or other documents, the act or acts sought to be restrained. La. C.C.P. art. 3605. The proscribed conduct must be ascertainable from the four corners of the injunctive order or judgment, and not by the mere reference to the petition or other documents. In this case, the district court’s ruling enjoined the defendants from “running, distributing and transmitting” political advertisements. However, the ruling as rendered did not indicate within its four corners which political ad-vertisements the defendants were enjoined from running. The omission of the description of the prohibited political advertisements was fatal to ensuring compliance with the order at issue. Kocher v. Truth in Politics, Inc., Fourth Circuit, No. 2019-CA-0993 (11/15/19). https://www.la4th.org/opinion/2019/478240.pdf

Absent an express agreement or other stipulation to submit the merits of the case on the hearing for a pre-liminary injunction, the trial court erred in dismissing permanent injunction claim. Tanner v. Succession of Bourland, Second Circuit, 52,918-CA (11/20/19). http://www.la2nd.org/archives/docs/31d18e.pdf

La. C.C.P. art. 1033 mandates denial of an intervention after an answer has been filed if it will “retard the progress of the principal action.” It is immaterial whether the party seeking intervention was aware of the action prior to the time where the intervention would delay the proceedings. Opelousas General Hospital Authority v. Louisiana Health Services and Indemnity Co., Third Circuit, No. CA 19-265 (11/12/19). http://la3circuit.org/Opinions/2019/11/111219/19-0179opi.pdf

A judgment for or against a deceased person is an absolute nullity. Succession of Horrell, Fourth Circuit, No. 2019-CA-0269 (11/6/19). https://www.la4th.org/opinion/2019/477652.pdf

Defendant in asbestos case filed a declinatory exception of lack of personal jurisdiction. In support of its exception, the defendant submitted evidence that it had never manufactured, designed, or distributed asbestos or asbestos-related products, nor had it ever been registered to do, or had done any business in Louisiana. The plaintiffs contended that the defendant was the successor of decedent’s former employer. Held: The court lacked personal jurisdiction over the defendant. There was no evidence that there was a transfer of liability between the defendant and the company that would include liability that the former employer had for tortious conduct while the decedent was employed. The defendant could not have reasonably foreseen being sued in Louisiana for potential liabilities a long-ago predecessor may have had. Bannister v. SFB Companies, Inc. First Circuit, 2019-CW-0079 and 2019-CW-0367 (11/15/19). https://www.la-fcca.org/opiniongrid/opinionpdf/2019%20CA%200367%20Decision%20Appeal.pdf

The trial court should have given plaintiff, who sued the state in tort for injuries he suffered while serving time at Angola, an opportunity to amend his petition to allege facts concerning specific relevant dates during which prescription was suspended due to pursuit of administrative remedies on his tort claim. Templet v. State of Louisiana, First Circuit, 2019-CA-0037 (11/15/19). https://www.la-fcca.org/opiniongrid/opinionpdf/2019%20CA%200037%20Decision%20Appeal.pdf

In opposition to the defendant’s motions for summary judgment, the plaintiffs submitted an unsigned expert affidavit. After the court issued an order providing that the record on the summary judgment motions was closed but also continuing the hearing date on the motions, the plaintiff sought to substitute a signed copy of the expert’s affidavit more than fifteen days before the hearing on the summary judgment motions. The defendants opposed the substitution and the trial court refused to allow the substitution. The trial court grant-ed the motions for summary judgment. Held: Affirmed. The trial court did not abuse its discretion in closing the record and thereafter rejecting any untimely filed oppositions after the deadline established for motions for summary judgment. Reed v. Restorative Home Health Care, LLC, Second Circuit, 52,645-CA (11/14/19). http://www.la2nd.org/archives/docs/300274.pdf

Seller sued Buyer, alleging that Buyer’s employee had authority to enter into a contract with the seller. Buyer filed an exception of no cause of action based on the employee’s lack of authority to enter into the contract. Held: The seller alleged specific facts to defeat an exception of no cause of action based on theories of actual authority and tacit ratification of the contract. Fluid Disposal Specialties, Inc. v. Unifirst Corporation, Second Circuit, 53,014-CA (9/25/19). http://www.la2nd.org/archives/docs/8fa575.pdf

The Supreme Court imposes the following discipline: (1) disbarment, where respondent settled a case without client authorization, charged interest on money that he loaned to a client, converted client funds, failed to cooperate with the ODC in an investigation, and provided false statements to the ODC, in In Re Bell, 2019-B-1345 (11/5/19), at http://www.lasc.org/opinions/2019/19-1345.B.PC.pdf; (2) disbarment, where respondent failed to perform any services for a client, misled a client about the status of her case, solicited and purchased prescription medication from a client, and failed to cooperate with the ODC in an investigation, in In Re Hingel, No.  2019-B-1459 (11/19/19), at http://www.lasc.org/opinions/2019/19-1459.B.PC.pdf; (3) suspension of one year and a day, fully deferred subject to a two-year period of supervised probation, where respondent mishandled her client trust account and failed to fully cooperate with the ODC in its investigation, in In Re Hunt, No. 2019-B-1412 (11/12/19), at http://www.lasc.org/opinions/2019/19-1412.B.PC.pdf, and (4) a suspension of one year and one day, fully deferred, where respondent was arrested and charged with DWI, possession of marijuana, and traffic charges, in In Re Lamb, No. 2019-B-1460 (11/19/19), at http://www.lasc.org/opinions/2019/19-1460.B.PC.pdf.

In situations involving multiple accidents, whether preceding or subsequent to the accident at issue, a tort-feasor is liable only for the direct and proximate results of his wrongful acts, including aggravation of any preexisting injuries. Although a tortfeasor takes his victim as he finds him, the tortfeasor cannot be held liable for injuries which are not attributable to the wrongful act. Giavotella v. Mitchell, First Circuit, 2019-CA-0100 (10/24/19). https://www.la-fcca.org/opiniongrid/opinionpdf/2019%20CA%200100%20Decision%20Appeal.pdf

Successor corporation to contracting party defendant expressly or impliedly agreed to assume predecessor corporation’s debts; the successor corporation purchased all or substantially all of predecessor’s assets; the successor was a continuation of predecessor; and sale of assets to successor was done for the purpose of escaping liability. Therefore, successor is liable and  solidarily liable with predecessor. Giles v. One Lane Memorial Park, LLC, First Circuit, 2019-CA-0357 (11/15/19). https://www.la-fcca.org/opiniongrid/opinionpdf/2019%20CA%200357%20Decision%20Appeal.pdf

Jury awarded $12,000 for future medical expenses. Plaintiff moved for JNOV, in which she argued that she was entitled to $2,498,243.05 in future medical expenses. The trial court denied her motion. Held: Affirmed. “Given that the medical evidence introduced by plaintiff was highly contested by defendants, we find that reasonable persons in the exercise of impartial judgment could reach different conclusions as to plaintiff’s claim for future medical expenses. ” Giavotella v. Mitchell, First Circuit, 2019-CA-0100 (10/24/19). https://www.la-fcca.org/opiniongrid/opinionpdf/2019%20CA%200100%20Decision%20Appeal.pdf

The DEQ Remediation Order at issue was not a final enforcement action appealable under La. R.S. 30: 2050. Under applicable rules of statutory interpretation, the specific statutory procedure set forth in Chapter 12 of the Louisiana Environmental Quality Act provides the means by which party can challenge the DEQ Remediation Order. Thus, the district court lacked subject matter jurisdiction to consider the petition for judicial review. Firestone Polymers, LLC v. The Louisiana Department of Environmental Quality, First Circuit, 2019-CA-0283 (11/15/19). https://www.la-fcca.org/opiniongrid/opinionpdf/2019%20CA%200283%20Decision%20Appeal.pdf

La. R.S. 45:201.7, which expressly allow insurers to exclude UM coverage in policies issued to an owner or operator of a personal vehicle when a driver is engaged in ride-sharing activity (i.e., Uber and Lyft), does not violate public policy. Crowley v. GoAuto Ins. Co., Fourth Circuit, No. 2019-CA-0643 (11/27/19). https://www.la4th.org/opinion/2019/479008.pdf

A claim for damages for the breach/bad faith breach of an obligation owed under an operating agreement is essentially a claim for a breach of fiduciary duty. Sanctuary Capital, LLC v. Cloud, Second Circuit, 53,157-CA (11/20/19). http://www.la2nd.org/archives/docs/e6d563.pdf

Plaintiff suffered serious injury from repeated incorrect intubations after a C-section performed in a rural hospital. The rural hospital’s anesthesia services were provided pursuant to a contract between two compa-nies, including the defendant company. The defendant company contracted with local health care providers to deliver the anesthesia services. A Certified Registered Nurse Anesthetist (CRNA) had performed the intubations in questions, and the defendant claimed that its only duty was to provide a competent CRNA and that the CRNA was an independent contractor. The trial court granted defendant’s motion for summary judg-ment. Held: Reversed. The record, including the defendant’s agreement to provide anesthesia services as well as its responses to requests for admission, established a duty to ensure the supervision of the CRNA. The contract also required the defendant to provide services related to the administration of anesthesia services to patients at rural hospital, which, according to the responses to requests for admission, it did not provide. Hawkins v. The Schumacher Group of Louisiana, Inc., Second Circuit, 53,137-CA (11/20/19). http://www.la2nd.org/archives/docs/1cbabf.pdf

If the claimant in a medical malpractice proceeding does not pay the complete filing fee when requesting a medical review panel, the entire request is invalid and without effect. Here, the claimant named four health care providers in its initial request. The PCF informed claimant that three were qualified health care providers and the plaintiff paid $300. Later, the PCF notified claimant that the fourth provider was also a QHCP and that claimant owed an additional $100 filing fee. Claimant did not submit the $100. The PCF later returned the $300. More than one year after the after the alleged medical malpractice occurred, the plaintiff filed another claim against the three QHCPS whom the PCF had initially identified as QHCPs, but not the fourth. Held: The claims are prescribed. In Re Medical Review Panel Proceeding of Ferguson, Second Circuit, 53,139-CA (11/20/19). http://www.la2nd.org/archives/docs/946bb2.pdf

The trial court did not err in finding that Bayou Dolet was not navigable when Louisiana entered the Union in 1812. Furie Petroleum, L.L.C. v. Swepi, LP, Second Circuit, 53,113-CA and 53,114-CA (11/20/19). http://www.la2nd.org/archives/docs/0c7474.pdf

The plaintiff suffered injuries in an automobile accident that occurred when she collided with a vehicle that was exiting the parking lot of a restaurant. The plaintiff filed suit against the restaurant and the owner of the restaurant, among others, alleging that the restaurant was liable because it allowed customers to park along the state right-of-way, which interfered with the safe ingress/egress out of the parking lot. The defendant restaurant filed a motion for summary judgment, which was granted. Held: Reversed. There is a genuine issue of material fact as to whether the restaurant and its owners had a duty to stop the practice of its customers in parking in the right of way. Sepuvaldo v. Farm Bureau Ins. Co., No. CA 19-317 (11/6/19). http://la3circuit.org/Opinions/2019/11/110619/19-0317opi.pdf

The plaintiff was passing a vehicle driven by the defendant when the defendant attempted a left-hand turn onto an intersecting road. The trial court found that the plaintiff was 95% at fault and the defendant was 5% at fault. The appellate court finds that the allocation of 95% fault to the plaintiff passing motorist was exces-sive, as the area in question was not clearly marked as a no-passing zone. The appellate court amends the judgment to allocate 50% fault to each driver. Hill v. State Farm Mutual Ins. Co., Third Circuit, No. CA 19-395 (11/13/19). http://la3circuit.org/Opinions/2019/11/111319/19-0395opi.pdf

The plaintiff, a car owner, took his car to the defendant for a “restomod,” in which an older vehicle is equipped with the amenities of a newer vehicle. Part of the “restomod” involved having the car “dyno-tested,” i.e., calibrating the engine and transmission to ensure the systems were working efficiently together. After the defendant completed the work, the defendant and the plaintiff went for a test drive with the defendant driving. There was an accident in which both the plaintiff and the defendant were severely injured. In the plaintiff’s subsequent suit, the defendant reconvened, alleging that the plaintiff insisted that the defendant provide more power to the car even though the defendant warned against it. The trial court granted the plain-tiff’s motion for summary judgment on the defendant’s claims in reconvention. Held: Affirmed. The plaintiff, a passenger in the vehicle he owned, was not operating and controlling the vehicle and clearly did not owe a duty to the defendant. Further, the court found that the defendant’s decision to test drive the vehicle on the open road and to accelerate excessively, despite his knowledge of the vehicle’s mechanical propensities, was a substantial cause of the accident. Putnam v. Costello, Second Circuit, 53,1420CA (11/20/19). http://www.la2nd.org/archives/docs/76800c.pdf

Plaintiff was riding his motorcycle in Bossier City when he struck a trash can, which was located in the roadway near residents’ home. The plaintiff sued the residents and the waste management company, alleging that the defendant residents negligently failed to maintain their property adjacent to the roadway and failed to remove their trash can from the roadway, and that the defendant waste management company negligently performed its duties of garbage retrieval and created a roadway hazard. The defendant residents moved for summary judgment, arguing that they had not breached the duty to exercise reasonable care. The defendant waste management company moved for summary judgment, contending that it was not negligent and that its conduct was not a cause-in-fact of any injuries. The district court granted both motions. Held: Affirmed. The plaintiffs did not present any evidence to establish that the actions of any of the defendants caused the trash can to be in the roadway. Strozier v. Loux, Second Circuit, 53,136-CA (11/20/19). http://www.la2nd.org/archives/docs/a68330.pdf

The parties negotiated an agreement for construction of a bulkhead that did not include a specific amount for the bulkhead because the undisputed evidence showed that the total length was not contemplated at the time they agreed to a per-foot price. The contractor demanded payment of a $30,000.00 outstanding balance prior to filing suit. Held: The fact that the account reflected only one transaction and that the owner did not intend to engage contractor in future transactions are irrelevant to the characterization of the debt as an open account under the plain language of La. R.S. 9:2781(D). SBL Construction, LLC v. Eymard, First Circuit, 2018-CA-1691 (11/12/19). https://www.la-fcca.org/opiniongrid/opinionpdf/2018%20CA%201691%20Decision%20Appeal.pdf

The plaintiff alleged that she was assaulted by an employee of a Calcasieu Behavioral Health Services, LLC. The filed suit against the employee and against the CBHS. Stonebridge Health System, LLC made an appearance for the purpose of filing a declinatory exception of improper service, arguing that CBHS was unrelated to it and that service on its agent as an agent of CBHS was improper. Following this, the plaintiff filed a supplemental petition against Stonebridge that asserted the same claims as against CBHS. Stonebridge filed a peremptory exception of prescription on the basis that the suit against it was filed 18 months from the alleged tortious conduct, and a dilatory exception of prematurity on the basis that the claims against were governed by the Louisiana Medical Malpractice Act and had to be submitted for a medical panel review. The district court granted both exceptions, and the plaintiff appealed. Held: Reversed. Looking at the allegations of the petition and the admission that the intentional tortfeasor was an employee of Stonebridge at the time of the assault, the appellate court held that Stonebridge was a joint tortfeasor for purposes of La. C.C. art. 2324(B). Prescription was interrupted as to Stonebridge when suit was filed against the employee. Further, the alleged perpetrator of the sexual assault was a maintenance worker, who was not a healthcare provider. The allegations against Stonebridge did not arise from the rendering of health care services or the supervision and training of health care providers, and thus they are not subject to the LMMA. Cabrera v. Lewis, Third Circuit, No. CA 19-275 (11/6/19). http://la3circuit.org/Opinions/2019/11/110619/19-0275opi.pdf

Trial court erred in finding plaintiff’s claim against her former daughter-in-law was prescribed in the absence of an exception of prescription being presented in a formal pleading. Ory v. Russell, First Circuit, 2018-CA-1491 (11/12/19). https://www.la-fcca.org/opiniongrid/opinionpdf/2018%20CA%201491%20Decision%20Appeal.pdf

When a promissory note is payable in installments, as opposed to on demand, the five-year prescriptive period commences separately for each installment on its due date. If the installments are accelerated based on a default, the entire amount is subject to a prescriptive period commencing on the day of the acceleration. Here, an action on the first note and foreclosure on property securing the debt did not accelerate debt on the second note, which was also secured by the foreclosed-upon property. Collins Asset Group, LLC v. Hamilton, Second Circuit, 53,209-CA (11/20/19). http://www.la2nd.org/archives/docs/cfeef6.pdf

In 2000, the decedent was admitted to the hospital with abdominal pain. At that time, the pathology report indicated the decedent’s prior exposure to asbestos and mesothelial cells were identified. Mesothelioma was not diagnosed at that time. In 2008, the decedent went to the hospital complaining of severe abdominal pain.  A CT scan indicated abnormalities that could be inflammatory or malignant, and the decedent was treated for diverticulitis. A month later, he underwent exploratory surgery, and a tumor and nodules were removed. Observation was recommended. His condition was monitored until 2012, when a CT scan showed consid-erable increase of the disease in the decedent’s stomach. He was advised his condition was terminal and died shortly thereafter. The district court found that the plaintiffs’ subsequent claims were time barred because the decedent became aware that he had mesothelioma in 2008. Held: Reversed. The treating physician could not remember what he told the decedent about his condition in 2008. The testimony of the treating physician and the decedent’s family members indicated that the decedent was told that he needed to be followed and that the condition was benign. The malignancy was not diagnosed until 2012. Lee v. American Supply Co., Third Circuit, No. CA 18-893 (11/6/19). http://la3circuit.org/Opinions/2019/11/110619/18-0893opi.pdf

Under the Private Works Act, the acceptance and treatment of a certificate of substantial completion, so long as the requirements enumerated in La. R.S. 9: 4822(E) are met, constitutes a notice of termination of work which is sufficient to trigger the running of the applicable preemptive period. Further, in order to plead a cause of action for a stipulation pour autri, the plaintiff must allege that the relevant contract manifested a clear intention to benefit the plaintiff. Landco Construction, LLC v. Precision Construction & Maintenance, LLC, First Circuit, 2019-CA-0403 (11/15/19). https://www.la-fcca.org/opiniongrid/opinionpdf/2019%20CA%200403%20Decision%20Appeal.pdf

Plaintiff suffered a fractured skull and broken neck in a bicycle accident when the bicycle’s front tire discon-nected. The bicycle, which had a quick release mechanism, was missing a secondary retention device. The plaintiff had purchased the bicycle on eBay from a seller who had purchased it from the original owner (not the manufacturer). The plaintiff sued numerous defendants, including the manufacturer of the bicycle. The trial court granted the manufacturer’s motion for summary judgment. Held: Affirmed. The manufacturer established that the secondary retention device had not been filed off or removed at the time the bicycle left manufacturer’s control. On the design claim, the plaintiff did not establish that a bicycle with a quick release mechanism coupled with a secondary retention device is unreasonably dangerous in design. Delahoussaye v. Boelter, First Circuit, 2019-CA-0026 (11/15/19). https://www.la-fcca.org/opiniongrid/opinionpdf/2019%20CA%200026%20Decision%20Appeal.pdf

The mere execution and recordation of a mineral lease on a property, without more, constitutes a disturbance in law but not fact, and thus did not serve to interrupt an adverse possessor’s corporeal possession. Frith Farms DeSoto Parish Interest Partnership, L.L.P. v. Lee, Second Circuit, 53,116-CA (11/20/19). http://www.la2nd.org/archives/docs/7b2b1e.pdf

The district court erred in “splitting the difference” between two expert opinions regarding the boundary between two properties, as there was no evidence in the record to support the trial court’s boundary determination. Considering the evidence de novo, the appellate court finds that the defendants possessed the disputed property in good faith for over 10 years, and installed a culvert, a covered driveway, and a trailer home on the property, and installed a hurricane fence on the site that they determined to be the boundary. Stelly v. Bergeron, Third Circuit, No. C 19-102 (10/30/19). http://la3circuit.org/Opinions/2019/10/103019/19-0102opi.pdf

Louisiana allows for acquisitive prescription of blighted property under La.R.S. 9:5633. Under the statute, ownership of an immovable may be acquired by the prescription of three years without the need of just title or possession in good faith, and sets forth strict procedural requirements for the acquisition of property in this manner. If the possessor does not meet all the requirements of the statute, an interested party may file an affidavit to nullify the possessor’s affidavit of intent to possess and acquire the property. In this case, where a party forcibly interfered with the peaceful possession of property under the statute, and the possessor proper-ly stated a case of action for possession, the possessor successfully had the right to pursue that claim through a petition for declaratory judgment. 1137 N. Robertson, LLC v. Jackson, Fourth Circuit, No. 2019-CA-0553 (11/15/19). https://www.la4th.org/opinion/2019/478585.pdf

Under Louisiana law, a person may not be compelled to own property in indivision with another and may petition a court of competent jurisdiction to partition the property between its owners. If the property in question is not divisible in kind, such as a house, it must be partitioned by licitation and put up for sale at public auction. The parties may agree, however, to a private sale at any time before the auction is held. In this case involving the partition of property owned together by two former romantic partners, the district court erred in ordering a private sale by the two property owners. It is not within the trial court’s discretion to grant a court-ordered private sale. However, the trial court has the discretion to direct the manner and conditions of effecting a partition so that it will be most advantageous and convenient to the parties. This discretion extends to the trial court’s right to set a minimum bid which the property must bring at judicial sale. Treas v. Koerner, Fourth Circuit, No. 2019-CA-0390 (11/13/19). https://www.la4th.org/opinion/2019/477943.pdf

Under the Public Bid Law, a bidder’s failure to comply with every detail can invalidate the bid. In this case, the winning bidder was not present at the pre-bid conference, as required by La. R.S. 38:2212(I); while a representative attended on behalf of a trade name associated with the winning bidder did attend, that trade name was not registered in Louisiana and thus did not exist in this state. Further, the name on the winning bid form did not conform with the name that appears in the official records of the Louisiana State Licensing Board for Contractors, as the name included the trade name that was not recognized in Louisiana. Finally, the bidder failed to include additional information requested by the bid. Held: The defendant impermissibly waived the bidding requirements in selecting the non-conforming bid. Merrick, L.L.C. v. The Airport Authority for Airport Distr. 1, Calcasieu Parish, Third Circuit, No. CA 19-185 (11/6/19). http://la3circuit.org/Opinions/2019/11/110619/19-0185opi.pdf

Public Employees

The New Orleans Civil Service Commission’s denial of the New Orleans Fire Department’s request to in-vestigate was not a final appealable judgment over which the appellate court had subject matter jurisdiction. Hellmers v. Department of Fire, Fourth Circuit, No. 2019-CA-0420 (10/30/19)

Plaintiff, a public employee, was laterally transferred from one position to another. He sought to appeal the transfer and his appeal was summarily dismissed without an evidentiary hearing. The relevant board refused to grant the plaintiff an evidentiary hearing because it found that his appeal letter did not allege facts, which if proven, would entitle him to relief. Held: Municipal boards have the authority to require employees to state the factual basis for the appeal, under penalty of dismissal. In this case, the conclusory allegations of discrimination were insufficient; however, the plaintiff should be given a reasonable opportunity to amend his appeal letter to cure this defect. Estess v. Bossier City Municipal Fire and Police Service Board, Second Circuit, 53,068-CA (11/20/19). http://www.la2nd.org/archives/docs/b59c42.pdf

In a dispute concerning the production of requested public documents, the custodian’s claim of undue burden or expense is not enough to overcome the public’s right of access to public records; it is only where the request is so burdensome that it interferes with the custodian’s constitutional and legal duties that the public’s right to access the records may be restricted. The burden of proof to justify any restriction or limitation on the public’s right to access a public record is on the custodian. In this case, the custodian relied on its partner under a licensing agreement to aid in responding. The custodian thereafter did not review unredacted responsive documents before the partner redacted various parts, and therefore the custodian had no idea what the partner had removed. Thus, the custodian did not satisfy its burden of proving it was justified in restricting the public’s right to access a public record. Krielow v. Louisiana State University Board of Super-visors, First Circuit, 2019-CA-0176 (11/15/19). https://www.la-fcca.org/opiniongrid/opinionpdf/2019%20CA%200176%20Decision%20Appeal.pdf

In this grocery store slip-and-fall case, the plaintiff moved for summary judgment on the issue of liability. In her motion, the plaintiff presented evidence in the form of her testimony and that of an eyewitness that she slipped on a wet substance and there was a clear liquid on her dress after she fell. The video of the security tape showed that there was no evidence of anyone spilling any liquid in the 70 minutes before the accident. The district court granted the plaintiff’s motion on the basis that the unrefuted facts led to the logical conclusion that there was a clear liquid on the floor that caused the plaintiff to slip and fall and that the liquid was on the floor for at least 70 minutes before she fell. Guidry v. Brookshire Grocery Store, Third Circuit, No. CW 19-322 (11/20/19)/ http://la3circuit.org/Opinions/2019/11/112019/19-0322opi.pdf

Plaintiff fell at defendant grocery near the watermelon bins, where a “milky/clear” puddle of watermelon juice, roughly 18 inches in diameter, was standing on the floor. There were two “wet floor signs” placed in the area at the time of plaintiff’s fall. The trial court granted defendant’s motion for summary judgment that it was not liable because it neither created a condition that presented an unreasonable risk of harm nor had actual or constructive notice of such a condition prior to the incident. Held: Affirmed. The plaintiff offered no factual support for his speculation that defendant’s employees or methods of doing business were responsible for creating the puddle of watermelon juice, or that the condition had existed for a period of time prior to his fall. Matlock v. Brookshire Grocery Co., Second Circuit, 53,069-CA (11/20/19). http://www.la2nd.org/archives/docs/220542.pdf

Plaintiff, a grandmother, while on her way to watch her granddaughter’s sporting event, exited the passenger side of daughter’s car and slipped and fell on a piece of metal rebar protruding from a concrete wheel stop in the walkway adjacent to the parking area. She sued the city, the parish, and the insurer. After the plaintiff dismissed her claim against the parish, the city moved for summary judgment claiming immunity under the recreational land immunity statutes. The trial court granted the motion. Held: The city did not exercise direction or control over the parking lot or derive any extraordinary benefits from its use. The plaintiff offered no testimony that established the city created the defective condition or adopted the subject parking lot for its own private use. Anderson v. City of Kenner, Fifth Circuit, 19-CA-346 (11/27/19). http://www.fifthcircuit.org/dmzdocs/OI/PO/2019/B0B316DF-E633-4F49-B107-DBA6D611771D.pdf?dt=191129

Where the testators failed to sign two pages of their wills, and the attestation clauses lacked the language that the wills were signed in the presence of the witnesses and notary on each page, the attestation clauses were not substantially similar to the form requirements proscribed by La. C.C. art. 1577 and thus were absolute nullities. Succession of Booth, Third Circuit, No. CW 19-104 (11/6/19). http://la3circuit.org/Opinions/2019/11/110619/19-0104opi.pdf

A person physically impaired to the extent that he cannot read can still execute a notarial will, but only in accordance with the requisite formalities. As to the attestation clause, La. Civ. Code art. 1579(2) requires that, in the presence of the testator and each other, the notary and witnesses must sign a declaration set forth in the article “or one substantially similar.” The failure to include the language of La. Civ. Code art. 1577 that the will was signed “at the end and on each other separate page” was not a material deviation where the testator’s signature appeared on each page and the notary and witnesses attested to the testator signing at the end of the document. Succession of Liner, Second Circuit, 53,138-CA (11/20/19). http://www.la2nd.org/archives/docs/550658.pdf

“Although no party to the succession challenged the testament, the trial court, sua sponte, contested the va-lidity of decedent’s signature. Despite affidavits from decedent’s attorney of more than ten (10) years, two (2) witnesses attesting to the testament at issue, the affirming testimony of decedent’s spouse of more than twenty (20) years, and evidence that decedent frequently revised his last will and testament, the trial court insisted that decedent’s signature looked different on two separate testaments, and therefore, denied Appellants’ judgment of possession and order of probate…. [W]e find that the trial court abused its discretion in taking said action.” Succession of Barbee, Fourth Circuit, No. 2019-CA-0575 (11/27/19)., https://www.la4th.org/opinion/2019/478971.pdf

MRI and CT equipment cannot be removed from a building without causing substantial damage to the equipment or to the building in which they are installed. Thus, they are component parts of the building and costs associated with the repair and maintenance of the systems are not subject to sales and use taxes. West Jefferson MRI, LLC v. Lopinto, Fifth Circuit, 19-CA-82 c/w 19-CA-83 (11/27/19). http://www.fifthcircuit.org/dmzdocs/OI/PO/2019/7B37A5DF-52B7-49ED-8A98-A04FF815642F.pdf?dt=191129

Claimant was in an accident in August 2009 in which the truck he was driving was struck on the left side. The claimant had cervical surgery in November 2017, based in part on complaints related to his right side. The claimant sought benefits for the period of disability flowing the surgery, penalties and attorney’s fees. The WCJ found that the claimant failed to establish a causal relationship between the 2009 accident and the complaints that led to the surgery. Held: Reversed. The WCJ erred in analyzing the claimant’s claim without giving him the benefit of the presumption of causation, i.e., that the claimant’s pre-existing degenerative disc disease was presumed to have been aggravated by his accident. Smith v. Nu Verra Environmental Solution, Second Circuit, 52,908-CA (10/30/19). http://www.la2nd.org/archives/docs/d3b880.pdf

The doctrine of res judicata applies in workers’ compensation cases only in certain limited situations. Gen-erally, a determination of the extent of disability in a prior proceeding will not be res judicata as to a renewed request for a reevaluation of the issue in a petition seeking modification of the prior judgment. Res judicata does not bar a subsequent claim between the same parties if the parties appear in a different capacity. Here, Louisiana United Business Association Casualty Insurance Company ( “LUBA “) intervened in claimant’s tort suit against a third party. The decision in the tort suit that the claimant was not permanently disabled was not res judicata and a bar to subsequent claim for benefits. The plaintiff was not precluded from litigating the issue of entitlement to benefits. Thomas v. Marsala Beverage Co., Second Circuit, 52,898-WCA, 52,899-WCA, 52,900-WCA, 52,901-WCA (11/20/19). http://www.la2nd.org/archives/docs/eecbd8.pdf

While worker’s compensation insurer paid for a Medicare Set-Aside Cost Allocation and a Social Security report, neither were transmitted to the claimant’s attorney; thus, there was no acknowledgement sufficient to interrupt prescription. Nor was issuance of a new prescription card for the claimant a clear renunciation of prescription. Coleman v. Ace Property & Casualty Co., Fifth Circuit, 19-CA-305 (11/27/19). http://www.fifthcircuit.org/dmzdocs/OI/PO/2019/7DAE0A52-211E-48C2-B945-15B2B3295F7F.pdf?dt=191129

All claims for disability arising from an occupational disease are barred unless the employee files a claim within one year of the date that: (1) the disease manifested itself; (2) the employee is disabled from working as a result of the disease, and (3) the employee knows or has reasonable grounds to believe that the disease is occupationally related. Prescription does not begin to run until all three conditions are met. In this case, the claimant voluntarily retired in 2008. In 2018, he filed a disputed claim for workers’ compensation benefits (supplemental earnings benefits and medical benefits), alleging that he had sustained a gradual occupational noise-induced hearing loss. The employer filed a motion for summary judgment seeking a dismissal of his claims on the basis that (1) there was no evidence that the alleged hearing loss rendered him disabled or unable to earn at least 90% of his prior wages, and (2) the claims were prescribed. The summary judgment motion was denied, and the employer sought review of the prescription issue only. Held: Affirmed. The claimant had no problem performing his duties when he retired, and he was not restricted from working in high decibel work environments until 2018. Tower v. ConocoPhillips Co., Third Circuit, No. WCW 19-81 (11/6/19). http://la3circuit.org/Opinions/2019/11/110619/19-0081opi.pdf

An employee was injured 30 minutes before her shift began as she was exiting an elevator in the hospital she worked at. Held: The employee was in the course and scope of her employment when the accident occurred.  Edigo v. Otis Elevator Co., Third Circuit, No. C 19-229 (11/6/19). http://la3circuit.org/Opinions/2019/11/110619/19-0229opi.pdf

Claimant’s misrepresentations regarding the use of illegal substances did not constitute fraud for purposes of La. R.S. 23:1208. The employer did not prove that the misrepresentations were done for the purpose of obtaining or defeating any benefit or payment under the worker’s compensation law. The evidence showed that the treating physician might have decided not to treat the claimant if he had known that he was using illegal substances. The statements were inconsequential as they had nothing to do with the injury sustained during the workplace accident or any pre-existing injury. Raney v. Top Deck, Inc. Third Circuit, No. WCA 18-927 (11/13/19).

The jury and the trial court did not err in refusing to award the plaintiffs any damages where the collision that gave rise to the suit was minor; the plaintiffs waited a considerable amount of time before seeking medical attention, and their accounts of the accident were contradicted by the physical evidence. Doucet v. Hornet Service Co., Third Circuit, No. CA 19-212 (11/20/19). http://la3circuit.org/Opinions/2019/11/112019/19-0212opi.pdf

Expert witnesses are intended to assist the trier of fact in understanding the evidence or the determination of a fact at issue. The expert does not usurp the authority of the trial court, which is still tasked with determining the key issue of “best interest of the child.” A trial judge may substitute his/her own common sense and judgment for that of an expert witness when such a situation appears warranted on the record as a whole. In this case, the trial court did not err in not adopting the recommendation of the expert on custody where the expert’s conclusions were based on unsubstantiated allegations that had no evidentiary support at trial or in the record. Roche v. Green, Third Circuit, No. CA 19-137 (11/13/19). http://la3circuit.org/Opinions/2019/11/111319/19-0137opi.pdf

If the party urging a change of physical custody allocation of a joint custody plan fails to show a material change in circumstances, the inquiry ends, and there is no basis for altering the consent judgment. In this case, the appellate court finds that the district court erred in finding a material change in circumstances and expanding the visitation schedule to include overnight visitation during the school week. However, the appel-late court affirms the remainder of the revised Joint Custody Plan as an incorporation of what the parents originally wanted. Joubert v. Joubert, Third Circuit, No. CA 19-349 (11/13/19). http://la3circuit.org/Opinions/2019/11/111319/19-0349opi.pdf

The trial court denied mother’s request to set visitation. Held: Reversed. “Because continuing to award no visitation, even supervised, to a biological parent is an extremely harsh result, and the record is unclear regarding why no evidence was introduced, we find the most equitable solution is to remand this matter to the trial court for a full evidentiary hearing…. ” Carpenter v. McDonald, First Circuit, 2019 CU 0971 & 2019 CW 0919 (11/15/19). https://www.la-fcca.org/opiniongrid/opinionpdf/2019%20CU%200961%20Decision%20Appeal.pdf

Where the underlying custody decree is a stipulated judgment, a party seeking a modification must prove that: (1) there has been a change in circumstances materially affecting the welfare of the child since the original (or previous) custody decree was entered; and (2) the proposed modification is in the best interest of the child. Here trial court did not err in refusing to modify custody arrangements. Babcock v. Martin, First Circuit, 2019-CU-0326 (10/24/19). https://www.la-fcca.org/opiniongrid/opinionpdf/2019%20CU%200326%20Decision%20Appeal.pdf

Courts have not held that there is an absolute right to a fault-based divorce when the proper procedure has been followed and the requirements of either La. C.C. art. 102 or La. C.C. art. 103(1) have been met. Martin v. Trushyna, Fifth Circuit, 19-CA-79 (11/13/19). http://www.fifthcircuit.org/dmzdocs/OI/PO/2019/161BEB61-6B7B-46A5-A8F6-72AB571C29B7.pdf?dt=191113

The trial court did not err in terminating ex-wife’s award of interim periodic spousal support upon the judgment of divorce, instead of allowing it to continue for 180 days after the divorce, as provided in the amendment to La. C. C. art. 113. The current version of the article makes it mandatory that the interim sup-port continue for 180 days after divorce, while the previous version required a pending claim for final spousal support in order for the interim support to continue after the divorce. The law in effect at the time of the judgment was the previous version of La. Civ. Code art. 113, which terminated support at the time of divorce unless a claim for final support was pending. The court determined the amendment to Article 113 applied prospectively only. Hanna v. Hanna, Second Circuit, 53,210-CA (11/20/19). http://www.la2nd.org/archives/docs/009bfc.pdf

Under “Gwen’s Law,” La. C.C.P. art. 313, the trial court is required to conduct a contradictory hearing to determine the feasibility of granting bail to a person arrested on domestic abuse charges. Here, after such a hearing was held, the plaintiff, the ex-wife of defendant, sought a permanent order of protection against her ex-husband under the Domestic Abuse Assistance Act, La. R.S. 46:2131 et seq. At the hearing on the plaintiff’s petition, the record of the “Gwen’s Law” hearing was accepted by reference; the plaintiff’s testimony at “Gwen’s Law” proceeding was similar to her testimony at the hearing for the protective order. The plaintiff’s petition was granted. Held: The district court did not err in admitting the entire record of the “Gwen’s Law” hearing in the proceeding for the protective order. Bettevy v. Bettevy, Third Circuit, No. CA 19-327 (11/6/19). http://la3circuit.org/Opinions/2019/11/110619/19-0327opi.pdf