On October 23, 2017, counsel for the plaintiff sent a letter to the trial judge’s chambers stating as follows: “There are two sets of exceptions filed in the above matter (Docket No 737-093), which are currently set for hearing on Monday, October 30, 2017. Counsel for movants and respondents agree that more time is necessary to process the Fifth Circuit Court of Appeal’s recent decision which impacts these exceptions. My paralegal spoke with your chambers earlier about alternative dates. We were instructed to send this letter, requesting possible dates in early 2018. Also, an evidentiary hearing will be required, with the testimony of a few witnesses. Can you please provide some alternative dates in January or February?” This letter was not filed in the record. In response to the letter, the trial court entered a minute entry ordering that the hearing on the exceptions was continued “without date.” After three years passed with no further action, the co-defendant filed a motion to dismiss the case as abandoned. The trial court granted the motion. Held: Reversed. The October 23, 2017 letter request to the court to reset the hearing evidenced the plaintiff’s intent to hasten the suit to judgment. Thus, it was a step in the prosecution of the action. Although the letter was not filed in the record, the minute entry in the record referenced both the letter and the continuance of the hearing. Roubion Shoring Co. LLC v. Crescent Shoring, LLC, Fifth Circuit, No. 21-CA-237 c/w 21-CA-238 (12/22/21).
In cases in which peremptory exceptions are overruled, appellate courts generally do not exercise supervisory jurisdiction, since the exceptor may win on the merits or may reurge the exception on appeal. Under the criteria set forth by the Louisiana Supreme Court, appellate courts are cautioned to exercise supervisory jurisdiction only in cases where the overruling of the exception is arguably incorrect, when a reversal will terminate the litigation, and when there is no dispute of fact to be resolved, such that judicial efficiency and fundamental fairness to the litigants would dictate that the merits of the application or supervisory writs should be decided in an attempt to avoid the waste of time and expense of a possibly useless future trial on the merits. Dyson v. Seal, First Circuit, No. 2021 CA 0456 (12/22/21).
In 2015, the Louisiana Legislature substantially revised La. C.C.P. art. 966; under the revisions, La. C.C.P. art. 966(G) now precludes a trial court from considering a dismissed party in any subsequent allocation of fault. Thus, a dismissed party cannot be referenced and no evidence may be introduced in any attempt to establish fault. As a result, there can no longer be a reduction of the judgment for the remaining defendant based on the dismissed defendant. The revision has led to a circuit split in the Louisiana appellate courts as to whether an absurd result occurs when a co-defendant is dismissed on summary judgment, the plaintiff does not appeal the co-defendant’s dismissal, and the remaining defendants do not have the right to appeal the dismissal. Noting a split in the circuits on the issue, the Fourth Circuit finds that a non-moving co-defendant does not have the right to appeal a summary judgment when the plaintiff failed to appeal the adverse judgment and the judgment became final. Amedee v. Aimbridge Hospitals, LLC, No. 2020-CA-0590 (12/1/21).
Cause of Action
Parish government filed a petition for declaratory judgment requesting that the trial court interpret the laws and constitution of Louisiana, particularly La. R.S. 49:214.26 and 49:214.36, to determine who is authorized to investigate and civilly enforce violations of State and Local Coastal Resources Management Act of 1978, La. R.S. 49:214.21 et seq. (SLCRMA). The trial court held that the parish government failed to state a cause of action because it did not have a valid legal argument against the appointment of the district attorney to investigate alleged SLCRMA violations. Held: Reversed. The parish government stated a cause of action regarding the interpretation of statutory and constitutional provisions. Terrebonne Parish Consolidated Government v. La. Dep’t. of Natural Resources, First Circuit, No. 2021 CA 0486 (12/30/21)
Following the repeated refusal of the trustee of a family trust to make distributions mandated by the trials court’s injunction, and his failure to provide a proper accounting, the trial court imposed a civil contempt sanction of sixty days in jail, suspended, and placed the trustee on unsupervised probation for six months, with the condition being that he not violate any fiduciary duty owed to the trust under the trust instrument or the Louisiana Trust Code. The trial court did not abuse its discretion in imposing the sanction. Marshall v. Marshall, First Circuit, No. 2021 CA 0608 (12/27/21). See also Marshall v. Marshall, First Circuit, No. 2021 CA 0607 (12/27/21) (upholding trial court’s decision to remove the defendant as trustee).
The plaintiff filed a motion for sanctions based on the defendant’s failure to produce documents pursuant to a subpoena and his failure to answer questions at a deposition, which ultimately resulted in the termination of the deposition. The plaintiff prayed for “discovery sanctions in the form of an award of reasonable expenses, along with the attorneys’ fees and expenses associated with the termination of the deposition.” The trial court, after a hearing on the motion, awarded attorney fees, costs, and court reporter expenses incurred in connection with the deposition and costs and attorney fees related to the hearing on the motion for sanctions. Held: Reversed. The trial judge erred in imposing discovery sanctions pursuant to La. C.C.P. art. 1469 and 1471 under the facts of this case because the plaintiff failed to first file a motion to compel. Reich, Album & Plunkett, L.L.C. v. Gaston Mugnier & Coastal Development Group, L.L.C., Fifth Circuit, No. 14-CA-339 (12/22/21).
Evidence; Adverse Presumption
On August 5, 2019, the plaintiff was walking across the parking lot of a Circle K Store, in the rain, when he stepped on a painted handicap parking logo, slipped, and fell. On September 11, 2019, counsel for the plaintiff sent a letter by certified mail to Circle K requesting that it preserve any evidence relevant to the slip and fall. On September 30, 2019, the plaintiff filed suit against Circle K, alleging that the painted handicap logo was unexpectedly slippery as compared to the surrounding asphalt surface and that Circle K was liable for using paint or other materials in creating the handicap logo that posed a slip hazard due to its lack of slip resistant properties. On November 8, 2019, Circle K filed its answer to the petition. On that same date, a third-party vendor pressure washed, repainted, and restriped the parking lot. The plaintiff sought an adverse presumption as it pertained to the handicap demarcation and the parking lot that Circle K restriped after the accident occurred. The trial court granted the presumption and Circle K appealed. Held: Affirmed. Although the adverse presumption was imposed based on an evidentiary doctrine, it was imposed as a sanction under La. C.C.P. art. 191 and thus was an appealable order. The court of appeal finds that the trial court did not abuse its discretion in imposing sanctions. Circle K had knowledge of not only the preservation letter, but also the allegations of the petition, before the parking lot was repainted. Circle K’s decision to pressure wash and repaint the parking lot was not based on any safety concerns, but was undertaken to “freshen up” the premises. Roussell v. Circle K Store, Inc., First Circuit, No. 2021 CA 0582 (12/22/21).
In Louisiana, a sale by executory process cannot be enjoined because of a dispute involving the amount remaining due on the debt. Only the fact that a borrower is in default at all, and not the amount of the overdue payments, is relevant in an executory process foreclosure. Deutsche Bank National Trust Co. v. Price, Fourth Circuit, No. 2021-CA-0430 (12/15/21).
In a motor vehicle accident case, the trial court erred in allowing the testimony of Dr. Charles Bain, who was tendered as an expert in the fields of accident reconstruction, biomechanics, medicine, or occupant kinematics. Dr. Bains testified that the plaintiff was not subjected to forces and accelerations that would cause any structural alteration to her cervical spine or shoulders or cause a traumatic brain injury. Dr. Bains testified that, in reaching his conclusions he did not perform “any specific tests for this case,” and he simply relied on “data he collected from hundreds of these (similar) tests,” specifically, “vehicles with front bumpers and trailer hitches.” Dr. Bain did not (1) inspect either of the vehicles involved in the collision at issue; (2) speak with the damage appraisers; (3) ascertain the plaintiff’s body position at the time of the accident; (4) inspect plaintiff’s vehicle for variance from the vehicle he rented that was the same make and model which was used to perform the exemplar-surrogate inspection; or (5) interview the plaintiff. Further, Dr. Bains’ methodology had been rejected by other courts, including the Supreme Court, for almost identical reasons. Pollard v. 21st Century Centennial Ins. Co., Fifth Circuit, No. 21-CA-65 c/w 21-C-48 (12/23/21).
Where there is nothing in the record to indicate that the trial court adhered to proper procedures when it vacated an original judgment and executed the amended judgment, the appellant court was constrained to find that the amended judgment was null and void. Locke v. MADCON Corp., First Circuit, No. 2021 CA 0382 (12/30/21).
The judgment on a promissory note awarded “any applicable amounts provided for by the Promissory Note, Act of Mortgage, and applicable law…and other charges which the Plaintiff is permitted to prove by affidavits filed or submitted before judicial sale.” To the extent that the judgment required additional action to be taken by the parties, including presentation of evidence to the district court for the determination and award of other additional damages that may be due, the judgment at issue was not a final judgment for purposes of appeal. U.S. Bank National Ass’n v. Dumas, First Circuit, No. 2021 CA 0585 (12/22/21).
In 2015, in legacy oilfield litigation against seeking remediation and damages, a jury determined that BP was solely responsible for environmental damage on the property. The trial court referred the matter to the Louisiana Department of Natural Resources (LDNR) for development of a most feasible remediation plan pursuant to La. R.S. 30:29. No final remediation plan was approved by 2020. Citing the lengthy delay after the initial referral for a remediation plan under La. R.S. 30:29, the trial court issued an interim award of fees and costs, and designated that judgment as a partial final judgment subject to immediate appeal. BP appealed, questioning the certification of the judgment as final, the referral to remediation under La. R.S. 30:29, and the award of attorney fees and costs. The court of appeal affirms the partial final judgment certification. The trial court recognized the unforeseen three-year-time lapse between the initial May 2017 hearing at which it found Sweet Lake entitled to recover all fees and costs pursuant to La. R.S. 30:29, and the June 19, 2020 hearing on the fees and costs issue. “Given that grossly excessive period of time, as well as the trial court’s recognition of the sizeable fees and costs already incurred by [the plaintiff], it can hardly be said that the trial court abused its discretion in its designation of the partial judgment as final.” Sweet Lake Land and Oil Co. LLC v. Oleum Operation Co., Third Circuit, No. CA 21-169 (12/1/21).
In Sweet Lake, supra, BP challenged the jury’s determination that it was the sole party “responsible” for the oilfield contamination site while making a corresponding determination that the plaintiff failed to prove the private causes of action in tort and contract. BP contended that, based upon the finding of “responsibility,” the trial court ordered the matter referred to Louisiana Department of Natural Resources for development of a remediation plan and, in turn, awarded fees and costs. BP contended that the trial court erred in implementing either post-trial measure given the jury’s finding that the plaintiff failed to prove private liability. However, as BP acknowledged, the first avenue for a trial court’s referral to LDNR for a final remediation plan is a party’s admission of responsibility for environmental damage. The record showed that BP judicially confessed both environmental damage and BP’s responsibility for the La. R.S. 30:29 remediation procedure. Thus, BP’s argument was foreclosed by its own admissions. Sweet Lake Land and Oil Co. LLC v. Oleum Operation Co., Third Circuit, No. CA 21-169 (12/1/21).
Forum Non Conveniens
The plaintiff jewelers own 3,000 retail stores internationally under the names “Kay,” “Zales,” and “Jared.” They brought suit a declaratory judgment suit in Orleans Parish against their insurer for business interruption losses sustained as a result of the COVID-19 pandemic. Six weeks after jewelers filed their lawsuit in Orleans Parish, the insurer filed a complaint for declaratory action against jewelers in Ohio state court. Jewelers filed a forum non conveniens motion in the Ohio action. The insurer subsequently moved to dismiss the Orleans Parish suit on the basis of forum non conveniens, among other things. The district court granted the motion, and dismissed jewelers’ suit with prejudice. Held: Affirmed. The insurer demonstrated that an adequate and available forum existed in Ohio, and the private interest factors supported a finding that Ohio was a convenient and appropriate forum. Jewelers were domiciled in Ohio and the insurer in Illinois. No party was domiciled in Orleans Parish. No Orleans Parish witnesses were identified by either party. The insurance policy was negotiated in Ohio, where jewelers’ corporate headquarters are located. Jewelers’ alleged losses took place throughout the world and much of the discovery would be conducted electronically, suggesting that it could take place anywhere. Further, from a travel standpoint, Ohio is appreciably closer to Illinois, where the insurer is domiciled, than Orleans Parish. Signet Jewelers LTD v. Steadfast Ins. Co., Fourth Circuit, No. 2021-CA-0288 (12/22/21).
La. R.S. 9:2772(A) sets forth a five-year peremptive period applicable to suits against contractors for defective construction. An exception to the five-year peremption period exists pursuant to Section 9:2772(H), which provides that the five-year peremption period does not apply if “fraud has caused the breach of contract or damages sued upon.” Paragraph H further provides that the issue of fraud hall be decided by trial separate from and prior to the trial of any or all other issues. In this case, the trial court legally erred in granting the defendant’s exception of peremption while deferring the issues of fraud based on the plain language of the statute. Whitney Bank v. Rayford, First Circuit, No. 2021 CA 0406 (12/9/21). See also Daxtreme, Inc. v. Lafayette City-Parish Consolidated Government, Third Circuit, No. CA 21-418 (12/15/21) (holding that the five-year peremptive period set forth in La. R.S. 9:2772 applies to claims against insurers and additional insured claims).
The plaintiff bought a vessel, the MISS REGAL for $125,000. He procured insurance for the vessel in the amount of $200,000 through his longtime insurance agent. The plaintiff then undertook intensive renovations and upgrades to the vessel, including installing new engines worth approximately $165,000. In January or February 2018, the plaintiff discussed the enhanced value of the MISS REGAL with the defendant. A plan was made to renew the existing policy, set to expire in February, to allow time to secure increased coverage of the vessel. On April 11, 2018, the plaintiff received a copy of the $200,000 renewal policy. On November 27, 2018, the MISS REGAL sank while docked and suffered catastrophic damage. The plaintiff discovered at that time that there was no additional insurance on the vessel. On November 26, 2019, the plaintiff filed suit against the defendant, alleging that he was negligent in failing to procure additional coverage for the MISS REGAL. The trial court found that the plaintiff’s claims were preempted and dismissed the action. Held: Reversed. It was the plaintiff’s belief that the defendant was in the process of procuring additional coverage, and it was not until after the vessel sank that the plaintiff learned that the defendant had not taken any action to procure the coverage. Construing all inferences in favor of the defendant, the non-moving party, the defendant could have taken steps to procure the coverage at any time prior to the date the vessel sank. Thus, the peremptive period did not commence until November 27, 2018, the date the vessel sank. Theriot v. Dwight W. Andrus Ins. Co., Third Circuit, No. CA 21-431 (12/15/21).
The defendants received an elevation grant from the State of Louisiana as part of the Road Home program in the wake of Hurricane Rita. The elevation grant was offered as an incentive for homeowners in flood-prone areas to elevate their homes to a level that met or exceeded the Advisory Base Flood Elevations established by FEMA. The terms of the elevation grant were set forth in a generic Elevation Incentive Agreement; the agreement required the defendants to elevate their home within three years of signing. The defendants signed the agreement on October 29, 2008. However, the defendants had already elevated their house to meet the FEMA standard and had provided the elevation certificate to the Road Home program prior to the elevation grant. In January 2020, the State filed suit against the defendants for breach of contract. The trial court held that the ten-year prescription period applied to bar the State’s claims. Held: Affirmed. The breach occurred on October 29, 2008, when the defendants signed the agreement. The State’s claim against the defendants had prescribed. State of Louisiana v. Leger, Third Circuit, No. CA 21-455 (12/22/21).
Advertising company filed a petition for defamation against an unknown online reviewer two months after the allegedly defamatory review. Eighteen months after the defamatory review, and nine months after the advertising company received information regarding the names of the individuals associated with the anonymous poster’s IP address, the advertising company amended its petition to include the two individuals. The defendants filed an exception of prescription, which the trial court deferred to the trial of the merits. The Fifth Circuit finds that the deferral of the exception was in error. The timeline of events was essentially undisputed; lengthy testimony as to the prescription issue appeared unnecessary to determine the factual and legal issues presented; and the plaintiff did not establish that the evidence relevant to prescription was intertwined with the merits of this case. Velocity Agency, LLC v. St. John, No. 21-C-658 (12/2/21). See also CWI Holdings, LLC v. Robertson, First Circuit, No. 2021 CA 0569 (12/22/21) (holding the trial court erred by failing to hold a trial, receive evidence, and rule on the exception of prescription raised by the defendant); State of Louisiana, Division of Administration v. Zanders, First Circuit, No. 2021 CA 0336 (12/22/21) (under unique facts of the case, the trial court did not err in proceeding with the summary judgment hearing where the defendants’ exceptions of prescription and peremption were filed three days before the summary judgment hearing).
The plaintiff owned a women’s clinic and employed defendant Myriad’s genetic testing products for her patients. Defendant Abel was a sales representative for Myriad. In 2016, the plaintiff chose to undergo a Myriad genetic test because her mother had suffered from breast cancer. The results of that test were negative for any clinically significant genetic mutations, but did identify one variant of “uncertain significance.” The plaintiff alleged that Abel informed her that she and her mother had the same gene, and indicated that the plaintiff had an 80-90% chance of developing breast cancer. The plaintiff alleged that Abel told her that his wife had the same gene and had chosen to undergo a prophylactic mastectomy. The plaintiff consulted a doctor and decided to undergo a double mastectomy. Approximately two years after that surgery, Myriad informed the plaintiff that the variant was reclassified from a “variant of uncertain significance” to a variant of “no clinical significance.” Three months later, the plaintiff and her husband filed suit, seeking damages as a result of Myriad’s incorrect classification of the genetic variant and Abel’s misinformation regarding her risk of cancer. Myriad and Abel filed a motion for summary judgment, arguing that the suit was not timely filed because any alleged negligence occurred over a year prior to the plaintiffs’ suit. Following discovery, and a hearing on the matter, the trial court granted summary judgment, holding that the suit had prescribed on its face and that no genuine issue of material fact existed. Held: Reversed. The plaintiffs presented a genuine issue of material fact as to when they acquired constructive notice of the cause of action. Abel’s alleged misinformation could reasonably have been interpreted as additional information providing further context to the plaintiff’s test results in such a manner that would not excite the plaintiffs’ attention, put them on guard, or call for inquiry. Pierre v. Myriad Genetics, Inc., Fourth Circuit, No. 2021-CA-0320 (12/15/21).
Prescription; Medical Malpractice
Under certain circumstances, a physician’s continuing professional relationship with a patient may give rise to the suspension of the prescriptive period for a medical malpractice action against the physician. A professional relationship alone, however, is insufficient to suspend prescription. Rather, it is the continuing treatment of a patient within the context of that professional relationship that may trigger the suspension of the prescriptive period. In order for the continuing treatment rule to suspend a prescriptive period, there must be a showing that the physician provided continued treatment to the patient that is related to the alleged act of malpractice. Furthermore, there must be a showing that the physician’s subsequent conduct classifies as behavior designed to prevent the plaintiff from asserting a claim, whether it be in the form of concealment, misrepresentation, fraud or ill practices. In reviewing the facts of the case at issue, the Supreme Court finds that the continuing treatment rule did not apply to suspend prescription. The physician had performed a hip replacement and revision surgery on the plaintiff when he discovered a severed sciatic nerve. Another physician performed surgery to repair the nerve. The plaintiff saw her physician for post-operative appointments; while the physician inquired about the foot drop caused by the nerve damage, he did not treat the plaintiff for the condition. Further, the physician’s failure to advise the plaintiff that he had severed the nerve during surgery does not constitute fraud or misrepresentation sufficient to suspend prescription. Mitchell v. Baton Rouge Orthopedic, L.L.C., Supreme Court, No. 2021-C-00061 (12/10/21).
The decedent died on August 23, 2019, two days after she underwent surgery for a bowel perforation. On February 24, 2020, a request for a medical review panel was filed with the Division of Administration alleging malpractice by the individual doctors and the medical center. The decedent was the only individual referenced in the complaint other than the defendants. On October 13, 2020, one of the physicians filed an exception of prescription on the basis that the complaint only identified the decedent, but she could not be considered the claimant because she was deceased at the time of the complaint. The request for a medical review panel was thereafter supplemented with the decedent’s surviving husband and children as claimants. The trial court dismissed the claim as prescribed. Held: Affirmed. The initial request for review filed on February 24, 2020, did not name a proper claimant and therefore did not suspend prescription. When plaintiffs filed the request for review on October 14, 2020, their claims were prescribed because more than a year had passed since the decedent’s death. In Re Medical Review Panel of Babin, Fifth Circuit, No. 21-CA-198 (12/15/21).
Right of Action
Dempster, the successor executor of a will executed by the decedent in 2010, filed a petition to annul the probate of a subsequent will executed by the same decedent in 2019. Milano, the successor trustee of a trust named as the sole legatee in the probated will, filed an exception of no right of action, arguing that Dempster had no right of action or interest to annul the probated will because he was not an heir, legatee, descendant or family member of the decedent. The trial court sustained Milano’s exception of no right of action and dismissed Dempster’s petition. Held: Reversed. As an executor named in a prior will, which would become the operative will if the subsequent wills were nullified, Dempster possessed a right of action to seek to annul the probated will. Succession of Brandt, Fifth Circuit, No. 21-CA-131 (12/29/21).
Defendant filed suit to enforce a settlement entered into with the plaintiff. The plaintiff presented evidence that she discharged her counsel a few hours before her counsel sent the email to defense counsel accepting the defendant’s offer. Because the evidence in the record showed that there was no settlement agreement in writing during the time that the plaintiff’s attorney had express authority to enter into such an agreement on the plaintiff’s behalf, the trial court manifestly erred in granting the motion to enforce the settlement agreement. Quintanilla v. Whitaker, Fifth Circuit, No. 21-CA-160 (12/1/21).
In the absence of consent by the parties, a trial court has no discretion to extend the fifteen-day deadline for filing an opposition set forth in La. C.C.P. art. 966(B)(2). Auricchio v. Harriston, Supreme Court, No. 2020-CC-01167 (12/10/21).
The trial court abused its discretion in accepting unauthenticated copies of a lease, a will, and an act of cancellation of lease agreement, which are not documents permitted to be filed in support of a motion for summary judgment unless properly authenticated and attached to an affidavit or deposition. Succession of Millet, First Circuit, No. 2021 CA 0355 c/w 2021 CA 0356 (12/22/21).
Trial; Failure to Appeal
Louisiana Code of Civil Procedure article 1672(A)(1) provides that “[a] judgment dismissing an action shall be rendered upon application of any party, when the plaintiff fails to appear on the day set for trial.” When a plaintiff fails to appear for trial, the court must determine whether the dismissal is to be with or without prejudice. La. C.C.P. art. 1672(A)(1). However, a dismissal for failure to appear is a harsh remedy and the court must also consider a broad range of less severe alternatives prior to ordering a dismissal. A party represented by counsel at a proceeding before the court is not considered absent. In this case, the trial court erred in granting an involuntary dismissal with prejudice of the plaintiff’s claim for failure to appear, where: (1) the plaintiff was not absent, since his appearance was made through counsel; (2) the trial court failed to inquire as to Plaintiff’s counsel’s readiness to proceed with the trial despite Plaintiff’s absence; and (3) the trial court failed to consider other less severe alternatives, such as a contempt of court charge or a dismissal without prejudice. Peterson v. Rochon, Fourth Circuit, No. 2021-CA-0365 (12/1/21).
Attorney Fees; Arbitration
Arbitration clauses in attorney-client agreements may be enforceable, provided the contract does not limit the attorney’s substantive liability, is fair and reasonable to the client, and does not impose any undue procedural barrier to a client seeking relief. An attorney may not take any action that might adversely affect a client’s interest without the client’s informed consent. A client’s consent is not truly informed unless an attorney provides a clear and explicit disclosure of the consequences of a binding arbitration clause. The attorney must, at a minimum, disclose the following legal effects of binding arbitration, assuming they are applicable: (1) the waiver of the right to a jury trial, (2) the waiver of the right to an appeal, (3) the waiver of the right to broad discovery, (4) the potentially higher upfront costs of arbitration as compared to litigation, (5) the exact claims covered by the arbitration clause, (6) the fact that an arbitration clause does not preclude a client from making a disciplinary complaint, and (7) the fact that a client may consult independent counsel before agreeing to the clause. In this case, the trial court erred in compelling arbitration because the attorney failed to explain the consequences of entering into an arbitration agreement with his client. Lape v. Brown, First Circuit, No. 2021 CA 0391 (12/30/21).
The Supreme Court imposes the following discipline: (1) a suspension of one year and one day, with six months deferred, where respondent neglected two legal matters and failed to communicate with her clients over the course of approximately two decades, in In Re Hilferty, No. 2021-B-1007 (12/10/21); (2) a suspension of nine months, where respondent, at her client’s insistence, conveyed a $100,000 settlement offer to opposing counsel, in exchange for which the client indicated that she would not appear at the opposing party’s criminal trial, in In Re Ponthieu, No. 2021-B-1151 (12/10/21); (3) a suspension of one year and one day, where respondent practiced law while ineligible due to his failure to comply with his MCLE requirements, and, while attempting to cure his ineligibility, provided the LSBA with an altered certificate of completion for a CLE course, in In Re Aucoin, 2021-B-0847 (12/7/21); and (4) suspension of one year and a day, where respondent practiced law while ineligible to do so and abandoned his law practice and client files, in In Re Waterwall, No. 2021-B-1443 (12/21/21).
Corporations; Fair Value
In a case involving the amount due as “fair value” to a withdrawing shareholder, the trial court erred in applying a trapped-in capital gains discount in determining the amount owed to the shareholder. There was nothing in the record to support the trial court’s finding that the sale of the corporation was inevitable as opposed to hypothetical. The trial court also erred in applying a collectability discount to related-party accounts receivable because there was no evidence that the related parties were unable to satisfy their obligation to the corporation. Finally, the trial court abused its discretion in failing to award the withdrawing shareholder legal interest from the date of the judgment. Shop Rite, Inc. v. Gardiner, Third Circuit, No. CA 21-371 (12/29/21).
Damages; Discounted Medical Records
In a personal injury case, the district court, upon the defendants’ motion in limine, excluded evidence of the total medical expenses billed by the plaintiff’s medical providers and limited the plaintiff to offering evidence of the medical expenses paid to his healthcare providers by the third-party funding/factoring company. Upon supervisory writs, the Fifth Circuit reverses. The plaintiff was responsible for the full amounts billed by his medical providers pursuant to assignment agreements with his medical providers, and thus he was entitled to present evidence of the total costs he was obligated to pay. Because the plaintiff had not actually received a benefit from the discount negotiated between the third-party funding company and the healthcare providers, the defendants could not subtract that discount from a theoretical damage award to the plaintiff. Ochoa v. Aldrete, Fifth Circuit, No. 21-C-632 (12/8/21).
In his defamation case against The Advocate, Justice Hughes met his burden of demonstrating a likelihood of success as to falsity of the complained-of defamatory speech. Hughes v. Capital City Press, L.L.C., First Circuit, No. 2021 CA 0201 (12/7/21).
Provisions in employment contracts that do not expressly state that an employee must forfeit wages upon resignation prior to the term of the contract, but rather require the employee to pay stipulated damages upon resignation, have consistently been held to be de facto forfeiture of wages clauses in violation of La. R.S. 23:634(A), and therefore unenforceable, when the stipulated damages clause does not reasonably approximate the obligee’s loss in the event of a breach. In this case, the employee and employer had a two-year employment contract in which the employee would be liable for “any monies for training incurred” during her employment if she quit her job before end of the term of employment. When employee resigned, the employer withheld not only the monies spent for training costs, but also the wages that the employee earned during the days that she attended training. Held: The reimbursement of the training costs provision in the plaintiff’s employment contract was a de facto forfeiture of wages clause in contravention with La. R.S. 23:634. Gallo v Greenpath International, Inc., Fourth Circuit, No. 2021-CA-0313 (12/16/21).
The trial court did not err in finding that a police officer, who was in pursuant of a traffic violator when he struck a car that turned into his path from a side street, was entitled to immunity pursuant to La. R.S. 32:24. Although the police office was exceeding the posted speed limit when the accident occurred, there was no indication that he could not operate his vehicle safely at the speed he was traveling. Further, the officer’s audible and visual signals were activated, and his signals were sufficient to warn motorists of his approach. Garcia v. City of Kenner, Fifth Circuit, No. 20-CA-378 (12/22/21).
The survivors of a decedent who died after being run over by a car filed suit alleging the negligence of the emergency responders who provided care to the decedent at the scene of the accident and en route to the hospital. The defendant moved for summary judgment on the basis that it was entitled to immunity under La. R.S. 37:1732, which provides immunity for emergency responders for any negligent acts. The defendant also argued that it was entitled to immunity under La. R.S. 40:1133.13, which provides immunity to emergency medical services practitioners, licensed pursuant to the provisions of the statute, who render emergency medical care to an individual while in the performance of his medical duties and following the instructions of a physician. However, the defendant failed to produce evidence that the first responders held “valid current certifications” or “valid certificate of completion” of training programs as required by La. R.S. 37:1732. The defendant did not produce evidence that the paramedics were licensed paramedics. While the defendant produced evidence that it had in use a set of protocols for EMS personnel that were developed and approved by a licensed physician, there was no testimony or evidence as to what the protocols were in the instant case. Thus, the defendant failed to show it was entitled to immunity under the statutes in question. Horton v. St. Tammany Fire Protection District #14, First Circuit, No. 2021 CA 0423 (12/30/21).
Immunity; Recreational Use
Louisiana Revised Statute 9:2795 provides immunity to the owner of land being used for recreational purposes against liability for injury to persons caused by a defect in the land, whether naturally occurring or manmade. Under the statute, immunity does not extend to playground equipment or stands that are defective. In this case, the plaintiff, while at a ballpark to attend her son’s baseball game, tripped and fell on a guy wire that was suspended diagonally across a metal canopy that covered the bleachers. Reversing the trial court’s grant of summary judgment in favor of the defendant, the First Circuit finds that there was a genuine issue of material fact as to whether the “stands” exception to recreational use immunity applied under the facts of the case. Goodson v. City of Zachary, First Circuit, No. 2021 CA 0240 (12/10/21).
In April 2017, the plaintiff and her husband attended the French Quarter Festival. After locating seats near one of the music stages located in the park, the plaintiff proceeded to the portable toilets. As she was returning to her seat, she tripped and fell over an exposed tree root. The plaintiff did not see the tree root and acknowledged that she was not looking down as she was walking back to the stage area. In the subsequent suit, the defendants claimed immunity under La. R.S. 9:2795. The trial court agreed, and granted the defendants’ motion for summary judgment. On appeal, the plaintiff argued that the statute did not apply to music festivals because they were not a recreational activity. Held: Affirmed. The recreational use immunity statute does not require that the injury arise out of the recreational activity per se, as long as the person injured was on the property for a recreational purpose. The Festival is intended to take place outdoors to feature the natural and architectural aspects of the French Quarter. Woldenberg Riverfront Park, the area where the plaintiffs were attending the Festival, was created, in part, for the public to enjoy the scenic views of the Mississippi River. Further, when inclement weather has threatened the event, the Festival is shortened, canceled, or rescheduled. The definition of “recreational purposes” is broad enough to include the activities normally associated with attending an outdoor music festival. Beal v. Westchester Surplus Lines Ins. Co., Fourth Circuit, No. 2021-CA-0187 (12/15/21).
In a case involving a default judgment, the trial court erred in awarding the plaintiff his claimed damages of $524,669, when the UM policy had a coverage limit of $100,000. Further, the defendant owed legal interest only on the amount of coverage, not the amount of damages awarded by the court. While La. R.S. 13:4203 prohibits an insurer from reducing its liability for interest on its policy limits, that section does not prohibit insurers from lowering, excluding or extending their interest liability on amounts in excess of their policy limits. Preston v. Safeco Ins. Co., First Circuit, No. 2021 CA 0647 (12/22/21).
At a trial on her UM claim against her insurance company, the plaintiff failed to submit evidence to prove the UM status of the offending driver. The plaintiff’s UM carrier did not concede or admit the UM status of the offending driver during the course of litigation or at trial. Thus, the trial court did not err in granting the insurer’s motion for a directed verdict in the matter. Smith v. Funderburk, First Circuit, No. 2021 CA 0134 (12/22/21).
Insured first applied for insurance with GoAuto on July 17, 2015. During the initial application process, the insured submitted a UM selection form rejecting UM coverage under the policy. The insured maintained continuous and uninterrupted coverage with GoAuto between July 17, 2015, and the date of the accident in question. Although the insured renewed her policy eight times, the policy limits never changed, and the insured never submitted a new UM form. Because there were no changes to the limits of liability in the policy, the original UM selection form was still in effect at the time of the accident giving rise to the suit. Johnson v. Bass, First Circuit, No. 2021 CA 0139 (12/22/21).
Louisiana health care providers brought suit against several group purchasers claiming that their workers’ compensation medical bills were discounted without notice, in violation of La. R.S. 40:2203.1. The defendant excess insurers appealed several adverse rulings that led to a judgment of $5 million against each insurer. On appeal, the court upholds the trial court’s finding that: (1) the insured Stratacare was a group purchaser within the definition of the statute; (2) the plaintiffs’ claims were not excluded under the policies issued to the insured group purchaser; and (3) the plaintiff’s claims were timely under the ten-year prescriptive period set forth in La. C.C. 3499. Williams v. Bestcomp, Inc., Third Circuit, No. 20-106 (12/15/21).
Lessee sought to defeat eviction by claiming that the Lessor breached the lease agreement by failing to procure lease insurance. Specifically, Lessee contended that it would have been able to fulfill its rental obligations had Lessor maintained insurance, which would have provided coverage for pandemic-related loss of rent. The district court agreed. Held: Reversed. The district court erred as a matter of law in finding that Lessee’s breach-of-lease claim defeated Lessor’s claim for possession of the Premises. Lessee’s breach-of-lease claim, even if true, was not an affirmative defense to the summary eviction proceeding that would entitle Lessee to maintain possession of the Premises. 235 Holdings, LLC v. 235 Enterprises, LLC, Fourth Circuit, No. 2020-CA-0658 (12/15/21). See also 241 Holdings, LLC v. 241 Enterprises , LLC, Fourth Circuit, No. 2021-CA-0011 (12/15/21).
The plaintiff filed suit against Bergeron, alleging that: (1) Bergeron was doing business individually as “Bergeron’s Metal Builders”; (2) he contracted with Bergeron to build various metal buildings and concrete slabs; (3) the slabs did not conform with the representations as to the quality of the workmanship made by the contractor, and (4) as a result of defective workmanship, the plaintiff had to expend funds to remediate damages caused by Bergeron. Bergeron moved for summary judgment on the basis that his interactions with the plaintiff were as the manager and sole member of “Bergeron’s Metal Buildings, LLC,” a Louisiana limited liability company, and therefore the plaintiff had no action against him individually. The trial court granted Bergeron’s motion for summary judgment. Held: Reversed. The evidence submitted in connection with Bergeron’s Motion for Summary Judgment did not conclusively establish that Bergeron expressly told the plaintiff that he was acting in a representative capacity on behalf of a juridical entity. Thus, material issues of fact remained as to whether Bergeron adequately disclosed his representative status and/or whether the plaintiff knew or should have known he was doing business with an LLC. Bourque v. Bergeron, Third Circuit, No. 21-108 (12/1/21).
Medical malpractice cases involving transfer decisions—i.e, a decision that a patient needs to be moved from one facility to another—cannot likely be established without expert medical testimony. Payne v. St. Bernard Parish Hospital Service District, Fourth Circuit, No. 2021-CA-0135 (12/1/21).
The decedent, a 16-year-old football player, injured his leg on October 21, 2013. He went to the defendant physician to examine his knee. At that time, his vital signs were normal. On October 31, 2013, the decedent went back to the doctor because he was sick. Although the parties later disputed what symptoms the decedent complained of during the visit, it was undisputed that the doctor did not take the decedent’s vital signs during the appointment and that he did not examine the decedent’s knee. The decedent died after midnight on November 1, 2013, from a massive pulmonary embolism post-knee injury. His survivors brought suit. Prior to the conclusion of the evidence at trial, the court presented the parties’ attorneys with a proposed jury verdict form, which included specific jury interrogatories regarding (1) whether the jury found that the doctor breached the standard of care in his treatment of Caleb; (2) whether that breach of the standard of care caused the decedent death; and (3) if so, the damages to which the plaintiffs were entitled. The plaintiffs’ attorney objected to the second interrogatory on causation, arguing that the causation interrogatory should have asked whether the breach of the standard of care resulted in a loss of the chance of decedent surviving the fatal event. The jury interrogatory was not altered to include the requested language. The jury found that the doctor breached the standard of care but that the breach did not cause the decedent’s death. Held: The jury interrogatories only provided an opportunity for the jury to consider whether there was a causal connection between the doctor’s breach and the decedent’s death. They did not permit a finding as to whether the breach of the standard of care denied the decedent a chance of survival, a separate compensable injury distinguishable from loss of life, despite the presentation of evidence to support this theory of recovery. As such, the jury interrogatories were so inadequate that the jury was precluded from reaching a verdict based on the correct law and facts. Allridge v. St. Martin, First Circuit, No. 2019 CA 1043 (12/7/21) (en banc) (Holdridge and Wolfe, JJ, dissenting).
Plaintiff was found to have an abscess in her thoracic spine with positive marrow infiltration around the T2 and T3 vertebrae. On December 19, 2018, her physician contacted an infectious disease specialist for plaintiff’s treatment and plaintiff was told that she would be contacted by University Medical Center New Orleans to schedule an appointment for treatment at its Infectious Disease Clinic. She alleged that she called UMC after having not heard from anyone for several days and was told to “be patient” because “it was Christmastime.” On January 3, 2019, plaintiff was transported by ambulance to Touro Infirmary with lower extremity paralysis. Her condition had progressed to the point that she had lost neurological function of her lower extremity and required an ambulance to take her from her home to Touro. Despite treatment at Touro, the plaintiff was rendered paraplegic due to the progressed osteomyelitis. While at Touro, on January 8, 2019, the plaintiff received a call from UMC notifying her that her appointment at the ID Clinic had been scheduled for January 14, 2019. The plaintiff subsequently filed a medical malpractice claim against UMC and her other providers based on their failure to timely schedule an appointment for the appropriate treatment. UMC filed an exception of prematurity, alleging that the alleged conduct fell under the Medical Malpractice Act. The trial court denied UMC’s exception. Held: The plaintiff’s claims against UMC did not fall within the MMA. Neither the allegations of the plaintiff’s petition, nor any evidence offered in the course of the hearing on the exception, established consent on the part of UMC to form a doctor-patient relationship with plaintiff, as required to establish the existence of an implied contract. Plaintiff’s osteomyelitis led to paralysis before her name even appeared in the UMC system. She never spoke to a doctor on the phone, never took medicine at the direction of UMC, was never scheduled for an appointment at UMC, never visited UMC for an appointment, and never received any type of care or treatment from UMC. Kelleher v. University Medical Center Management Corp., Supreme Court, No. 2021-CC-00011 (12/10/21).
Open Meetings Law
May a public body prohibit an individual from recording a public meeting under Louisiana’s Open Meetings Law, La. R.S. 42:11, et seq.? The Fifth Circuit finds that, under the particular facts of the case, the Open Meetings Law requires the City of Kenner to allow an individual citizen to utilize a cell phone to record a public council meeting. Fernandez v. City of Kenner, No. 21-CA-550 (12/8/21).
AT&T applied for a permit to install small cell wireless equipment, including a cell tower, at approximately 55 locations in Baton Rouge. The City of Baton Rouge/Parish of East Baton Rouge (City/Parish) issued the permit on October 3, 2018, which included a location on Antioch Road. AT&T installed the cell tower at the Antioch location in December 2019. Thereafter, the City/Parish revoked and terminated the permit issued at the Antioch Road location, stating that this area was publicly dedicated with certain stipulations that prevented the issuance of the permit. AT&T challenged the revocation of the permit. The trial court declined to reverse the revocation of the permit. Held: Affirmed. Given the zoning regulations, the Board of Appeals did not act arbitrarily or capriciously in determining that the permit was issued in error. Further, AT&T had been advised prior to the construction of the cell tower the Planned Unit Development required underground conduits and wiring and that the cell tower was in violation of the PUD. City-Parish of East Baton Rouge, First Circuit, No. 2021 CA 0292 (12/30/21).
The plaintiff, a season ticket holder with the New Orleans Hornets since 2007, was seated on the third row of courtside seating at a game when one of the players chased a loose ball into the courtside seating area. As he did so, he collided with the plaintiff. The plaintiff brought suit, claiming that the State was negligent for failing to erect safety measures to prevent her injuries. The trial court denied the State’s motion for summary judgment, and the appellate court denied the State’s application for a supervisory writ. Held: Reversed. In support of its motion for summary judgment, the State had introduced an affidavit from an expert in the area of facilities management, who opined that the configuration of the floor seating of the New Orleans Arena on the date of the accident was reasonable and commensurate with general industry standards. The expert explained that no basketball courts of any type, at any level, employ physical barriers. He concluded that the lack of physical barriers between the court and spectators is normal and customary. The expert’s affidavit was sufficient to establish the absence of factual support for an essential element of the plaintiff’s claim. Shear v. Trail Blazers, Inc., Supreme Court, No. 2021-CC-0873 (12/21/21).
The plaintiff went to the headquarters for CenturyLink, Inc. in Monroe, Louisiana, to perform health screenings for CenturyLink employees. When the plaintiff arrived, she walked from the parking lot to the CenturyLink building to check in and obtain her visitor’s badge. After the plaintiff received her badge, she headed back to her car to drive to the area where the health screenings were to take place. She exited the building from a different single door, took two steps, and fell into a two-and-a-half foot deep reflecting pool adjacent to the walkway. In the subsequent suit, the defendant filed a motion for summary judgment on the basis that the reflecting pool was open and obvious. The trial court granted the motion. Held: Reversed. In her deposition, the plaintiff stated that it was completely dark when she fell because there was no lighting in the area of the reflecting pool. Although the reflecting pool may have been open and obvious during daylight hours, the fall occurred at 5:30 a.m. in February. “Under the totality of the circumstances, considering the pictures depicting the close proximity of the reflecting pool to the door and the low barrier between the sidewalk and the reflecting pool with the unrebutted testimony of [the plaintiff] that it was ‘pitch black’ and there was no lighting in the area of the reflecting pool when she fell, reasonable persons could disagree on whether these conditions created an unreasonable risk of harm and/or were open and obvious.” Simon v. CenturyLink Inc., First Circuit, No. 2021 CA 0412 (12/22/21).
The plaintiff, a commercial truck driver, drove onto Avondale’s container yard in Jefferson Parish to pick up a chassis. While driving on the main road of the facility searching for a chassis, it began to rain and the plaintiff’s truck struck a hole. The plaintiff could not see the hole because it was covered by the rainwater. In the subsequent suit brought by the plaintiff for injuries and damages sustained as a result of striking the hole, the defendant moved for summary judgment, which was granted. Held: Affirmed. “Because of the obvious nature of the changing condition of a dirt and gravel road under the wheels of trucks, and the presence of several potholes on the property, with the additional precautions that a reasonable, much less professional, driver would take during rain, we find under these circumstances, the presence of a pothole in the road was an obvious danger and did not present a significant likelihood of injury.” Tucker v. Amtrust Ins. Co., Fifth Circuit, No. 21-CA-203 (12/22/21).
Plaintiff claimed that she slipped and fell on grapes in the produce section of Walmart. Although she did not see the grapes, she claimed that she must have slipped on green grapes because of green smudges on her jeans. She also claimed that the video evidence showed that there were grapes in the area where she fell. Held: The trial court did not err in granting the defendant’s motion for summary judgment. Although the video showed an employee in the vicinity of plaintiff’s fall, the plaintiff failed to show that there was a hazard present on the floor, or that any hazard existed for some period of time before her fall. The video did not confirm that there were grape(s) on the floor. Nor did the video show someone or something causing a grape to fall on the floor, or others slipping in or avoiding the area where plaintiff fell. Swatt v. Wal-Mart Stores, Inc., Fifth Circuit, No. 21-CA-66 (12/29/21).
The Third Circuit upholds the district court’s finding that Dollar General was liable for the plaintiff’s fall at the entrance to the store on a rainy day. The plaintiff testified regarding the presence of water on the floor and that her clothes were wet after the fall. She presented the video of the scene of the incident at trial in which she pointed out the wet area to the manager after he arrived to assist her. The plaintiff’s safety engineering expert identified areas of the mat that had become saturated due to the rainy conditions and opined as to the insufficient use of drying mats on the rainy morning. Finally, the manager, who was the only employee at the store on the day of the incident, noted that the floor was wet in the incident report that he prepared subsequent to the fall. Garrett v. DG Louisiana, LLC, No. CA 21-351 (12/15/21).
On April 5, 2016, the plaintiff, a graduate student at LSU, purchased a lithium ion battery through Amazon. com, as a replacement for the battery in her laptop computer. Approximately seven months later, the plaintiff was sitting on her bed in her apartment, with the computer in her lap, when the replacement battery became hot and burst into flames, igniting the bed and bedding and causing burns and other injuries to her hands, legs, thighs, and buttocks. As a result, the plaintiff was admitted to the Baton Rouge General Hospital Burn Center for approximately ten days, where she underwent daily debridement procedures and eventual surgery. The plaintiff brought suit against Amazon and Talented & Gifted (T&G), the third-party seller of the battery who marketed the battery through Amazon. The plaintiff contended that Amazon was a manufacturer and seller of the battery within the meaning of the Louisiana Products Liability Act (LPLA). The plaintiff also claimed that Amazon undertook a duty to warn its customers of defective products, but failed to warn the plaintiff of defect in the battery in question. The trial court granted Amazon’s motion for summary judgment. Held: Affirmed. The plaintiff failed to show sufficient evidence that Amazon was the seller of the battery. T&G was identified as the seller throughout the product viewing and ordering process. T&G was identified in the “sold by” line next to the price and shipping information on the product detail page and on the order confirmation page. Additionally, the “fulfilled by” line on the order detail indicated that T&G shipped the battery directly to the plaintiff. Finally, although Amazon did voluntarily warn purchasers of potential safety issues with items once it learned of them, Amazon had not received any report regarding the battery that the plaintiff purchased, and Amazon’s notification procedures did not increase the plaintiff’s risk of harm. Skaggs v. Amazon.com, Inc., First Circuit, No. 2020 CA 1089 (12/15/21).
Zachary, an employee of Exxon, was performing work on a plug valve that was connected to a pressurized isobutane line. Zachary was unable to operate the valve using the handwheel installed on top of the valve, and began to remove the valve’s gearbox in order to gain access to the valve stem, which he intended to open with a pipe wrench, while the isobutane line was still in use and the valve was pressurized. Four vertical bolts secured the L-shaped gearbox bracket to the plug; these four bolts were also used to secure the bonnet/top cap of the valve, which was a pressure-containing component of the valve. Zachary removed the valve gearbox; because the line was still pressurized, isobutane escaped the line. The isobutane reached an ignition source, causing an explosion and fire that injured several people in the area. In the subsequent suit brought by one of the injured parties, the defendant manufacturer moved for summary judgment, which the trial court granted. Held: Reversed. The plaintiff presented sufficient evidence at the summary judgment stage that the defendant manufacturer could have reasonably anticipated that the operators could inadvertently removing the pressure-containing bolts when trying to remove the gearbox bracket. Further, the plaintiff showed that there was an outstanding issue of material as to whether an alternative design of the valve existed that was capable of preventing the harm suffered by the plaintiff. Daigrepont v. ExxonMobil Corp., First Circuit, No. 2021 CA 0534 c/w 2021 CA 0535 (12/30/21). In a companion case, the appellate court finds that the trial court erred in concluding Setpoint, the distributor/seller of the valve, established that ExxonMobil was a sophisticated user such that Setpoint was not required to warn ExxonMobil of the risk of inadvertent removal of the four pressure-containing bolts securing the top cap in the subject valve. Daigrepont v. ExxonMobil Corp., First Circuit, No. 2021 CA 0536 c/w 2021 CA 0537 (12/22/21).
The existence of a lost promissory note must be established pursuant to La. R.S. 13:3740 and 13:3741. Section 13:3741 requires that the loss of the note be advertised. This statute also allows the plaintiff to post security in lieu of such advertisement. In this case, the holder of the note failed to prove that it met the requirements of the statute. Although the record contained documents purporting to show that the holder advertised for the lost note, the documents were not properly introduced at trial. Further, there was no evidence in the record that the holder posted a surety bond instead of advertising. Well Fargo Financial Louisiana v. Bordelon, Fifth Circuit, No. 21-CA-80 (12/22/21).
The Supreme Court holds that a usufruct “granted for life” is subject to the ten-year prescription of nonuse set forth in La. C.C. art. 621. However, under the facts of the case at issue, the usufruct did not prescribe, as there was no ten-year period of continued nonuse. Succession of Johnson, No. 2020-C-00815 (12/10/21).
Public Bid Law
Where the bidder failed to submit written evidence of signatory authority with its bid, the bid failed to comply with La. R.S. 38:2212(B). Although the evidence established the signatory was listed as a member on the bidder’s most recent annual report on file with the Secretary of State and, as such, had the authority to sign the bid, the bid package submitted to the Parish was devoid of either a corporate resolution or any other written evidence establishing his authority to sign the bid. Boone Services, LLC v. Ascension Parish Government, First Circuit, No. 2021 CA 0524 (12/30/21).
On July 16, 2018, the plaintiff filed the petition for damages alleging that the executrix for her husband’s will breached her fiduciary duty by entering into prohibited contracts with the succession and in failing to preserve the corpus of the estate. On the same date, she filed a rule to show cause why the decedent’s heirs should not be placed in possession. Before the hearing on the rule to show case, the executrix filed a detailed descriptive list. The next day, the parties filed a joint motion for consent judgment of possession. On November 19, 2018, the executrix filed a final accounting, which was amended on February 28, 2019. The plaintiff did not join the executrix’s homologation of the detailed descriptive list. Following the judgment of possession, the plaintiff amended her suit to include the decedent’s brother. The defendants filed an exception of res judicata, claiming that the entry of the homologation ended the succession pursuant to La. C.C.P. art. 3337. The trial court granted the motion. Held: Reversed. The goal of succession is placing the successors into possession of the decedent’s estate. The transaction or occurrence in a succession is the death of the deceased. The demand against a faithless succession representative is to recover damages occasioned during the discharge of her responsibilities. The transaction or occurrence in a claim against a succession representative is the breach of her fiduciary responsibilities. The closing of the succession does not preclude a demand against the succession representative for breaches of her fiduciary responsibilities. Succession of Mosing, Third Circuit, No. 20-0632 (12/8/21).
The Sheriff for Jefferson Parish brought an action against online travel companies (OTCs) alleging that they breached their statutory obligations as “dealers” operating in Jefferson Parish to remit Jefferson Parish sales and occupancy taxes to the Sheriff. Specifically, the Sheriff alleged that the subject taxes were due and owing to the Sheriff “on taxable sales of services in the form of furnishing sleeping rooms to transient guests,” and that the OTCs were “all engaged in the business of furnishing sleeping rooms.” The OTCs filed for summary judgment, which the trial court granted. The trial court found that the “fees” collected by the OTCs for facilitating the hotel reservations were not taxable “sales of services” as per the Uniform Local Sales Tax Code. The trial court further held that the OTCs were not “dealers” under the Tax Code. Held: Affirmed. Lopinto v. Expedia, Inc., Fifth Circuit, No. 21-CA-132 (12/23/21).
La. R.S. 47:1966 grants an assessor, upon discovery, the authority to prepare supplemental assessments on omitted or erroneously assessed properties for the prior three years. In addition, La. R.S. 47:1966 provides that a taxpayer who wishes to protest the supplemental assessment must first make a protest with his assessor. In the event the assessor denies the protest, a taxpayer may then appeal the supplemental assessment to the courts. There are two challenges that may be made to property tax assessments. One track encompasses challenges to the correctness of assessments by the assessor, while the other track covers challenges to the legality of the tax levied. La. Const. art. VII, § 18(E) provides that, for assessment correctness challenges, district courts are only granted appellate jurisdiction. Usey v. Hazel, Fourth Circuit, No. 2021-CA-0447 (12/15/21).
Proper notice that the property owner had six months to file a nullity action was not nullified by an incorrect notice cited in the same petition that the property owner had 60 days to file a nullity action. PCOF Properties, L.L.C. v. Joseph, Fourth Circuit, No. 2021-CA-0341 (12/1/21).
An action for redemption nullity may be brought as a reconventional demand or an intervention in an action to quiet title under La. R.S. 47:2266, which are both incidental demands. An incidental demand shall be commenced by a petition that complies with the requirements of La. C.C.P. arts. 891, 892 and 893. While an incidental demand instituted by the defendant in the principal action may be incorporated in his answer to the principal demand, the caption shall indicate appropriately the dual character of the combined pleading. La. C.C.P. art. 1032. In this case, the defendants were served with the plaintiff’s petition to confirm tax title and had until January 20, 2020, to bring an action to annul the tax sale. On January 16, 2020, the defendants filed an “Answer,” wherein they alleged that the Sheriff failed to provide all record owners with the legally required notice of the tax delinquency and sale pursuant to La. Const. art. VII, § 25(A). The defendant prayed that the tax sale be declared an absolute nullity. Their answer, however, did not name any defendants. Held: Although allegations of improper service of the tax notice were made in the defendants’ answer, such allegations did not constitute a proper reconventional demand. The caption of the answer did not conform to the requirements of La. C.C.P. art. 1032 in that it failed to indicate the dual nature of the combined pleading. Libertas Tax Fund, LLC v. Laiche, First Circuit, No. 2021 CA 0330 (12/22/21).
In a case involving injuries sustained by the plaintiff when a cylinder that formed part of a fire-suppressant system discharged while the plaintiff was moving the cylinder after it had been offloaded onto an oil production platform, the issues were: (1) whether the company hired to inspect the platform’s fire suppression systems owed a duty of care and, if so, whether it breached that duty; (2) whether the inspection company’s actions were the cause-in-fact and legal cause of the plaintiff’s injuries; (3) whether the inspection company was solely at fault; and (4) whether the general damage awards and the loss of consortium award were excessive. The Supreme Court finds that under the facts of the case, the trial court did not err in finding that the inspection company was liable for the plaintiff’s injuries; however, because there were multiple causes of the accident, the trial court erred in allocating all of the fault to the inspection company. Malta v. Herbert S. Hiller Corp., No. 2021-C-00209 (12/10/21).
Torts; Dog Bite
Mother, her boyfriend, and her two-year-old daughter were invited to visit their friend’s property, which was owned by the friend’s grandfather. The friend owned a pit bull, which was not restrained on the property. The dog bit the daughter on her lip while she and her mother were on the porch of the mobile home. In the subsequent suit, the trial court held that the friend was an insured under his grandfather’s homeowner’s policy because he often stayed at the house, got his mail at the residence, and stayed at other property owned by the grandfather when he was not at the residence. However, the trial court found that the dog did not present an unreasonable risk of harm. Held: Reversed. The testimony demonstrated that the friend did not take any precautions to prevent the risk of harm to others, but allowed the dog to roam without restraint and left the dog unsupervised on the porch with food in its bowl. Franks v. Sykes, Second Circuit, No. 54,177-CA (12/23/21).
The plaintiff, a high school student, was injured after he was punched in the shoulder by another student in the locker room. The plaintiff brought suit against the school. The school filed a motion for summary judgment, arguing that the injuries were neither foreseeable nor preventable. The trial court granted the motion for summary judgment. Held: Affirmed. The trial court correctly concluded that the school did not voluntarily undertake an enhanced duty to supervise the locker room. The self-serving affidavits presented by the plaintiff regarding the culture of the locker room contradicted prior deposition testimony and were thus insufficient to create a genuine issue of material fact. Dean v. De La Salle of New Orleans, Fourth Circuit, No. 2021-CA-0388 (12/21/21).
Vicariously Liability; Course and Scope
The plaintiff was involved in an automobile accident with a vehicle driven by Roco. The plaintiff sued Roco and eventually added Roco’s employer, Lanxess/Arlanxeo, in the suit. Lanxess/Arlanxeo filed a motion for summary judgment, arguing that Roco was not in the course and scope of his employment at the time of the accident. The district court granted the motion. Held: Reversed. Roco, who was employed as a project engineer, was the only process engineer in his unit. Roco’s job involved the manufacturing of a product twenty-four hours a day, seven days a week, and thus he was required to be available twenty-four hours a day, seven days a week. Roco was required to carry his company-issued cell phone at all times and was required to take his company-issued laptop to and from work in the event issues arose. At the time of the accident, Roco was en route to a mandatory work meeting, and had his cell phone next to him in case he needed to check his phone. Mullen v. State Farm Mutual Automobile Ins. Co., Third Circuit, No. 21-341 (12/8/21).
An employee on an employment-related errand may be within the course and scope of his employment yet step out of that realm while engaging in a personal mission. Generally, an identifiable deviation from a business trip for personal reasons takes the employee out of the course of employment until the employee returns to the route of the business trip, unless the deviation is so small as to be disregarded as insubstantial. In determining whether a deviation was substantial or insubstantial, the courts look at all the facts and circumstances of the deviation, including such illustrative factors as when and where, in relation to the business errand, the employee deviates from the employment-related errand and commences with his personal errand, the temporal and spacial boundaries of the deviation, the nature of the employee work, the additional risks created by the deviation, and the surrounding circumstances. In this case there were genuine issues of material fact remain as to whether the employee was on an employment-related errand at the time of the accident, whether he deviated from his employment-related errand prior to the accident, and if so, whether such a deviation was “substantial” so as to remove him from the course and scope of employment. Berthelot v. Indovina, First Circuit, No. 2021 CA 0517 (12/22/21).
MARRIAGE AND FAMILY
In a case involving an implicit finding that Husband was voluntarily underemployed for purposes of spousal support, the trial court did not err in finding that Husband’s gross income was $60,000 a year. However, the final spousal support award of $1,750.00 per month exceeded one-third of Husband’s gross income, in clear violation of La. C.C. art. 112(D). Creekbaum v. Creekbaum, First Circuit, No. 2021 CA 0527 (12/9/21).
The trial court did not err in modifying a stipulated custody agreement to name Father as domiciliary parent. Although the hearing officer recommended that Mother remain as domiciliary parent, the parties did not stipulate to the recommendation, and thus it remained at issue during the hearing before the 22nd JDC family court judge. At the hearing, Father proved a material change in circumstances detrimentally affecting the child existed based on the dysfunctional relationship between the parties. The trial court correctly found that Wife failed to facilitate Father’s relationship with the child. Wife did not respond to Father’s emails and did not allow Child to attend family and school events with Father. Mother ignored Father’s request for more video telephonic visits and refused to let Father have Child overnight. The trial court noted that Mother was under investigation by a federal grand jury in connection with allegations of the misuse of moneys from the Department of Veterans Affairs that had been provided to her paternal uncle, and Mother’s sister had sued Mother for misappropriation of moneys belonging to their mother. Significantly, Mother failed to properly administer funds Child inherited from Mother’s father. Yepez v. Yepez, First Circuit, No. 2021 CU 0477 (1/22/21).
Wife filed for a fault-based divorce under C.C. art. 103(2), 103(4) and 103(5) (adultery, abuse, and a former protective order against Husband); Husband filed a reconventional demand for divorce under C.C. art. 103(1) on the basis that the parties had been living separate and apart in excess of 180 days. The trial court granted the Wife’s divorce petition, finding that Wife proved that Husband had committed adultery, that Husband had abused Wife, and that Husband had been subject to a protective order based on the abuse. On appeal, Husband argued that the trial court erred as a matter of law when it denied his reconventional demand for an Article 103(1) divorce and instead granted Wife’s petition for divorce under La. Civ. Code arts. 103(2), 103(4), and 103(5). Held: Affirmed. When both parties are seeking a divorce pursuant to Article 103, the trial court should allow for both assertions to be tried. Further, the evidence supported the trial court’s finding in favor of the Wife’s stated grounds for divorce. Jennings v. Jennings, Fourth Circuit, No. 2021-CA-0386 (12/1/21).
Husband filed an original petition for divorce pursuant to La. C.C. art. 102 based on living separate and apart for 365 day in Caddo Parish, his domicile. In the petition he made no specific demands but reserved his right to raise any future ancillary claims. Three days after she was served, Wife filed her original petition for divorce pursuant to Art. 102 in her parish of domicile, Orleans Parish. In the petition, Wife requested partition of property and incidental relief including interim spousal support, final support, and use and occupancy of the jointly owned property located in Orleans Parish. Husband then filed a supplemental and amended petition in Caddo Parish raising a new cause of action for divorce pursuant to La. C.C. art. 103(2) based on adultery and requesting an immediate divorce. Wife then filed an exception of lis pendens in Caddo Parish, and, later, a second exception of lis pendens and exception of prematurity in the same parish. The exceptions were overruled and the ruling was affirmed by the Second Circuit. Husband then filed an exception of lis pendens in Orleans Parish. The trial court sustained the exception and dismissed Wife’s petition, including her incidental demands, and declined to transfer her request for spousal support to Caddo Parish. Held: Reversed. Wife was the first to claim incidental relief; consequently, lis pendens did not apply to her claims for incidental relief. Gamble v. Gamble, Fourth Circuit, No. 2021-CA-0126 (12/1/21).
The question of whether a single physical altercation between spouses rises to the level of physical abuse, which would warrant a fault-based judgment of divorce under La. C.C. art. 103(4), presents a mixed question of fact and law that is to be determined by the trier of fact. A trial court’s finding that a physical injury inflicted by one spouse upon the other rises to the level of physical abuse sufficient to warrant a fault-based divorce should be afforded great deference by a reviewing court. Here, the trial court record indicated that, while Husband may have used provocative language, Wife became increasingly physically abusive. The trial court determined that, based on the evidence and testimony presented at the hearing—which established that the physical injuries Wife inflicted upon Husband amounted to more than the “single inadvertent scratch.” Husband’s physical injuries were significant and sufficient to prove that Wife physically abused him during the marriage. Moreover, based on the testimony of the witnesses, the trial court found that the physical altercations between the parties, and the physical actions taken by Wife, appeared to be escalating in severity as the marital relationship deteriorated and the acrimony between the parties increased. Norton v. Norton, Fifth Circuit, No. 21-CA-212 (12/22/21).
Name Change of Minor
Mother sought to change her child’s name under La. R.S. 13:4751(C)(2)(b)(I), which authorizes the change of a minor’s name without a parent’s consent if the parent fails or refuses to comply with a child support order for a period of one year. The trial court denied Mother’s motion on the basis that two child support payments were made on Father’s behalf through the federal Treasury Offset Program. Held: Reversed. The trial court erred in concluding that the two involuntary payments to arrearages preclude a finding that Father failed or refused to comply with a child support order. Mother met her burden of proving that she was entitled to change the name of the minor child without Father’s consent. In Re Gerringer, First Circuit, No. 2021 CA 0663 (12/22/21).
Mother had an affair with Andrews. She had her last intimate encounter with him about eight months before her second child was born. Mother told Andrews a month after the baby was born that she had been intimate with her husband and that she had had the baby with her husband. Fifteen months later, Mother had a DNA test performed that revealed that Andrews was the baby’s father. Andrews intervened in the Mother’s divorce action to establish his paternity. Mother’s husband, the presumed father, filed exceptions of no cause of action, prescription and peremption. The trial court found that Andrews’ claim was perempted because it was brought more than a year after the birth of the child and because Mother had not been in bad faith in stating that her husband was the baby’s father. The appellate court reversed, finding that a woman who has had sexual relations with more than one man during the period of possible conception cannot maintain an honest belief that one man, and not the other, is the father. The Supreme Court reverses the ruling of the appellate court. In so doing, the Court rejected the notion that a woman who has sex with more than one man during the period of conception cannot have an honest belief that one man, and not the other, is the father. The mother’s honest belief as to her child’s paternity can be credible, because a credible belief may exist without factual certainty. Kinnett v. Kinnett, No. 2020-CJ-01134, 2020-CJ-01143, and 2020-CJ-01156 (12/10/21).