Babinski v. Sosnowsky Docket: 22-30588 Opinion Date: August 21, 2023 Judge: Carl E. Stewart Areas of Law: Civil Rights, Constitutional Law, Education Law Louisiana State University (“LSU”) (collectively “the Professors”) appealed the district court’s denial of qualified immunity after Plaintiff alleged that they violated his Fourteenth Amendment right to due process by conspiring to prevent his continued enrollment in Louisiana State University’s (“LSU”) theatre program. The Fifth Circuit reversed the district court’s determination that they were not entitled to qualified immunity and dismissed Plaintiff’s claims. The court held that the Professors lacked adequate notice that their conduct was violative of Plaintiff’s constitutional rights, and because they did not have this notice, they are entitled to qualified immunity. The court explained that the clearly established standard requires more than that—there must be a “high degree of specificity” between the alleged misconduct and the caselaw purporting to clearly establish the violation. Without it, the requisite “fair warning” required under the clearly established inquiry is absent. Read Opinion
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Malik v. DHS Docket: 22-10772 Opinion Date: August 15, 2023 Judge: Don R. Willett Areas of Law: Civil Rights, Constitutional Law Plaintiff is an immigration attorney whose work often requires international travel. Upon his return from one such trip, the Department of Homeland Security (“DHS”) diverted him to secondary screening after his surname appeared in connection with an investigation involving an arms dealer. DHS seized Plaintiff’s phone, decrypted it, screened the files for privilege, searched the remaining files, and then returned the phone to Plaintiff. Plaintiff sued DHS for declaratory and injunctive relief. The district court dismissed most of Plaintiff’s claims, reasoning that he lacks standing to seek declaratory relief related solely to past events. Next, while the court held that Plaintiff does have standing to seek an injunction requiring DHS to delete the data that it had seized, the court also held that Malik’s constitutional theories have no merit. The Fifth Circuit affirmed. The court explained that DHS found the cell phone on Plaintiff’s “person” because it was part of the “baggage” that he was carrying with him into the United States. The search easily falls within the “plenary authority” that Congress has granted to the Executive branch. Accordingly, the court held that Plaintiff’s statutory argument therefore fails. Next, the court reasoned that the apparent connection between Plaintiff and “an international arms dealer with known ties to the Dallas area” was plenty to create reasonable suspicion—even if Plaintiff is correct that the connection appears dubious in hindsight. Read Opinion Drug user cannot be barred from owning guns, US court rules www.reuters.com/legal/drug-user-cannot-be-barred-owning-guns-us-court-rules-2023-08-10/ LA State v. Jefferson Parish School Board Docket: 22-30143 Opinion Date: July 25, 2023 Judge: Don R. Willett Areas of Law: Civil Procedure, Constitutional Law, Education Law The Jefferson Parish School Board (JPSB) separately suspended two students for individually having a BB gun visible during virtual school. Each student’s family sued the school board, in part seeking a declaration that the school board’s virtual learning disciplinary policy is unconstitutional. Louisiana intervened, agreeing with the families on the constitutionality of JPSB’s policy and separately challenging JPSB’s disciplinary actions as ultra vires. JPSB settled with the families, ending the private suits. Louisiana wants to continue the case, citing its broad interest in compliance with its laws. The question before us is whether Louisiana has standing to do so. The Fifth Circuit concluded that Louisiana does not have Article III standing and remanded the case to the district court to send back to the capable Louisiana state courts. The court explained that this case lies outside the limits of Article III standing. States undoubtedly have an interest in enforcing their laws. But when it comes to federal courts, Louisiana must claim an injury to a traditional, sovereign interest to invoke Article III jurisdiction. The two are distinctly dissimilar. Louisiana fails to point to “any precedent, history, or tradition,” establishing that its interest in compliance with its laws is the equivalent of an Article III sovereign interest in maintaining its right to govern in the face of competing authority. The state similarly fails to establish an injury to an established quasi-sovereign interest sufficient to show parens patriae standing. Louisiana’s claim of injury to a proprietary interest also falls short. Read Opinion Louisiana lawmakers override governor’s veto on gender-affirming care ban
www.houmatimes.com/news/louisiana-lawmakers-override-governors-veto-on-gender-affirming-care-ban/ US Court of Appeals for the Fifth Circuit Opinions Johnson v. Cooper T. Smith Stevedoring Docket: 22-30488 Opinion Date: July 14, 2023 Judge: Dana M. Douglas Areas of Law: Admiralty & Maritime Law, Civil Procedure, Personal Injury Plaintiff worked as a longshoreman as early as 1998 and worked regularly for Cooper from 2008 through the date of his injury on June 22, 2018, never going more than a week and a half without working. He performed various jobs including operating a front-end loader and track hoe, flagging cranes, and loading barges. Employer classified Plaintiff as a non-assigned employee, meaning he was not assigned to a specific vessel. Employer has other employees who are assigned to vessels. Plaintiff was hurt when he fell to the deck of a ship he was working on. He filed suit against Employer in federal district court in November 2020, alleging that he was a seaman and a member of the crew, and bringing claims of Jones Act negligence, failure to pay maintenance and cure, and unseaworthiness. In the alternative, Plaintiff alleged that if he was not a seaman and was covered by the LHWCA. The District Court found Plaintiff failed to cite evidence that showed a genuine dispute of material fact as to whether he was a seaman and, alternatively, as to vessel negligence. The Fifth Circuit affirmed, finding that Plaintiff did not have a connection to the ship he was working on at the time he was injured, and that he could not establish vessel negligence. Read Opinion US District Judge in Louisiana Enjoins Federal Social Media Censors storage.courtlistener.com/recap/gov.uscourts.lawd.189520/gov.uscourts.lawd.189520.293.0_1.pdf Louisiana v. Shallerhorn Docket: 2022-KK-01385 Opinion Date: June 27, 2023 Judge: Crichton Areas of Law: Constitutional Law, Criminal Law The issue this case presented for the Louisiana Supreme Court's review was a matter of first impression: whether a defendant who is charged with first degree murder can elect a bench trial when the state has filed a formal notice that it will not seek capital punishment. The question presented involved the interpretation of Louisiana Code of Criminal Procedure article 780, specifically the meaning of the phrase “an offense other than one punishable by death.” In February 2021, defendant John Shallerhorn was arrested for several offenses, including on suspicion of first degree murder. The state filed notice that “for any charges for which the grand jury returns an indictment in [this] case, the State will elect to forego capital punishment.” Shallerhorn was ultimately indicted for first degree murder and armed robbery. Defendant filed a motion for a bench trial, seeking to waive his right to a trial by jury pursuant to the provisions of La. C.Cr.P. article 780. The state opposed this motion, and the trial court, agreeing with the state, denied it. The trial court noted that though the state was not currently pursuing the death penalty, “if something changes at the DA’s office and somehow death is back on the table,” then the defendant could not waive a jury and elect a bench trial. The Supreme Court held that after the state provides formal notice that it will not seek the death penalty, and thereby elects to prosecute the offense of first degree murder as a non-capital case, a defendant may waive a trial by jury and elect a bench trial. Read Opinion Seat Belt & DWI Checkpoints in Lafourche Parish Slated for Friday, June 23
www.houmatimes.com/news/seat-belt-dwi-checkpoints-slated-for-friday-june-23/ Every Louisiana driver’s license holder exposed in colossal cyber-attack www.theguardian.com/us-news/2023/jun/16/louisiana-drivers-license-hack-cyber-attack US Court of Appeals for the Fifth Circuit Opinions USA v. Lopez Docket: 22-40121 Opinion Date: June 13, 2023 Judge: Cory T. Wilson Areas of Law: Constitutional Law, Criminal Law Defendant pled guilty to possession of a firearm and ammunition by a felon. He challenged his sentence on several grounds, particularly the district court’s imposition of a four-level enhancement for use or possession of a firearm in connection with another felony offense. The linchpin of this case is whether Defendant’s repeated instances of being a felon in possession of a firearm were relevant conduct justifying the enhancement. The Fifth Circuit affirmed. The court held that the district court thoroughly analyzed the factors for relevant conduct— similarity, regularity, and temporal proximity—and concluded the evidence weighed in favor of the Government. Here, Defendant was sentenced to 70 months—well below the 10-year statutory maximum. The district court committed no error, clear or otherwise, in its analysis. Further, the court explained that the Sentencing Guidelines do not generally prohibit double counting. The Guidelines permit the district court to consider a defendant’s prior felony convictions in calculating both his offense level under Section 2K2.1(a) and his criminal history category. Accordingly, the court held that the district court did not err in calculating Defendant’s sentence on this basis. Read Opinion Ficher v. Bickham Docket: 19-30750 Opinion Date: June 6, 2023 Judge: James C. Ho Areas of Law: Constitutional Law, Criminal Law A Louisiana jury convicted Petitioner of second-degree murder. In this habeas proceeding, Petitioner contends that his trial counsel erred by failing to contact an eyewitness who would’ve supported his defense. He has twice been denied state postconviction relief. He sought federal habeas relief for a second time. The district court held the petition untimely and dismissed it with prejudice. The Fifth Circuit vacated and remanded so that the district court can rule on the ineffective assistance of counsel claim in the first instance. The court explained that courts of appeals may reach an abandoned timeliness defense when the waiver or forfeiture results from a mistake—but not when the state’s decision to focus exclusively on the merits of the habeas claim is based on a deliberate judgment call. And that is especially so where timeliness is complex, but the merits are straightforward. But rather than decide the merits of Petitioner’s claim in the first instance, the court concluded that remanding the case back to the district court is appropriate. Read Opinion Senate committee advances permitless concealed carry www.houmatimes.com/news/senate-committee-advances-permitless-concealed-carry/ US Court of Appeals for the Fifth Circuit Opinions Taylor v. LeBlanc Docket: 21-30625 Opinion Date: May 15, 2023 Judge: James C. Ho Areas of Law: Civil Rights, Constitutional Law, Criminal Law Plaintiff was detained beyond the expiration of his sentence because Department officials gave him credit for time served in pre-trial detention but only for one (rather than both) of his two consecutive sentences. That was the right thing to do under the law, then in effect. But Plaintiff was entitled to the more generous provision in effect at the time his sentence was entered. As a result, he served over a year longer than he should have. After his release, Plaintiff brought suit against various Louisiana officials under 42 U.S.C. Section 1983, among other claims. This appeal concerns only one of those claims: Plaintiff’s claim against the head of the Department, Secretary James LeBlanc (“Defendant”). Defendant appealed the denial of qualified immunity, arguing that his conduct wasn’t objectively unreasonable in light of clearly established law. The Fifth Circuit reversed. The court explained that while the right to timely release is clearly established, Plaintiff does not show how Defendant’s conduct was objectively unreasonable in light of clearly established law. Plaintiff contends that Defendant was objectively unreasonable because he failed to assign the task of calculating release dates to an attorney. But nothing in the Constitution requires that such actions be undertaken by a member of the bar. Read Opinion US Court of Appeals for the Fifth Circuit Opinions Texxon v. Getty Leasing Docket: 22-40537 Opinion Date: May 3, 2023 Judge: Stephen A. Higginson Areas of Law: Bankruptcy, Civil Procedure, Contracts Appellant Texxon Petrochemicals, LLC (“Texxon”) filed for bankruptcy. In that proceeding, Texxon filed a motion to assume executory contract, alleging that it entered into a contract with Getty Leasing in 2018 to purchase the property. Getty Leasing objected to the motion. After an evidentiary hearing, the bankruptcy court denied the motion on the grounds that, for multiple reasons, there was no valid contract to assume. The district court affirmed, finding there was insufficient evidence to show that, as required under Texas law, the alleged contract was sufficient as to the property identity or comprised an unequivocal offer or acceptance. Texxon appealed. Getty Leasing primarily contends that the appeal is mooted by the dismissal of the underlying bankruptcy proceeding. The Fifth Circuit affirmed. The court held that the brief email exchange did not demonstrate an offer or acceptance, as required for a contract to be binding under Texas law. Texxon fails to show that the email exchange satisfied any of the three required elements of an offer. A statement that a party is “interested” in selling a property is not an offer to sell that property—it is an offer to begin discussions about a sale. Nor were the terms of the offer clear or definite. Finally, the alleged offer failed to identify the property to be conveyed. For these reasons, Texxon is unable to show the existence of a binding contract. Read Opinion Adams v. City of Harahan Docket: 22-30218 Opinion Date: April 16, 2023 Judge: Carl E. Stewart Areas of Law: Civil Procedure, Civil Rights, Constitutional Law, Personal Injury This appeal arises from Plaintiff’s suit against the City of Harahan (“the City”) for its alleged deprivation of his Fourteenth Amendment right to due process. In October 2019, the Harahan Police Department (“HPD”) Chief of Police determined that Plaintiff was guilty of numerous offenses. Plaintiff was entitled to a fifteen-day appeal window of the Chief’s disciplinary determinations. Plaintiff exercised his right to appeal a week after the charges. However, the Chief emailed the Jefferson Parish District Attorney’s office (“JPDA”) to inform it of his disciplinary action against Plaintiff before he exercised his right. Plaintiff brought a civil rights suit against the City for violation of his procedural due process rights, stigma-plus-infringement, and defamation. He included Louisiana state law claims for defamation, invasion of privacy, and negligence. The City moved to dismiss his Section 1983 claims under Rule 12(c). The primary issue is whether the district court erroneously determined that Plaintiff had a liberty interest in his “future employment as a law enforcement officer. The Fifth Circuit reversed the district court’s denial of the City’s Rule 12(c) motion and dismissed Plaintiff’s due process claim. The court explained that Plaintiff’s alleged liberty interest in his career in law enforcement has no basis in Supreme Court or Fifth Circuit precedent. Moreover, he does not provide a different constitutional anchor for this proposed liberty interest. Because he fails to state facts supporting the violation of a cognizable liberty interest, he fails to plead a due process violation. Furthermore, the court declined to address the adequacy of the process he received. Read Opinion Southern Orthopaedic Speclalists v. State Farm Fire Docket: 22-30340 Opinion Date: April 4, 2023 Judge: Per Curiam Areas of Law: Civil Procedure, Contracts, Insurance Law Appellant Southern Orthopaedic Specialists, L.L.C. (“Southern Orthopaedic”) sued its insurer, State Farm Fire & Casualty Company (“State Farm”), to recover business interruption losses caused by covid-related shutdowns. It also claims that State Farm negligently misrepresented the scope of the policy’s coverage. The district court dismissed these claims as foreclosed by the policy and Louisiana law. The Fifth Circuit affirmed. The court held that Southern Orthopaedic’s pleadings fall short. They do not allege that covid caused “tangible or corporeal” property damage. Nor do they allege that the presence of covid particles required physically repairing or replacing any part of Southern Orthopaedics’s property. Nor do they claim that the presence of covid necessitated lasting alterations to the property. Without allegations of this nature, Southern Orthopaedic cannot meet the requirement of pleading an “accidental direct physical loss” under the policy. Read Opinion LOUISIANA
Proposed law: Louisiana 3rd graders reading below level would not be promoted www.klfy.com/louisiana/proposed-law-louisiana-3rd-graders-reading-below-level-would-not-be-promoted/ Louisiana Supreme Court Opinions Jones v. Market Basket Stores, Inc. Docket: 2022-C-00841 Opinion Date: March 17, 2023 Judge: Jefferson D. Hughes, III Areas of Law: Business Law, Civil Procedure, Personal Injury The district court awarded damages to plaintiff Lashondra Jones who was allegedly injured when she stepped on a wooden pallet with an attached pallet guard, holding a bulk watermelon bin, to reach a watermelon in the bottom of the bin, and the pallet guard collapsed. Defendant Market Basket Stores, Inc. appealed, and the appellate court reversed the award, finding manifest error in the factual findings of the district court requiring de novo review and concluding that the watermelon display did not present an unreasonable risk of harm to plaintiff. After review, the Louisiana Supreme Court concluded there was no manifest error in the district court’s finding of negligence on the part of the defendant; therefore, the appellate court erred in its ruling. Read Opinion Huge Louisiana Victory In Court: California’s Alligator Ban Defeated www.houmatimes.com/news/huge-louisiana-victory-in-court-californias-alligator-ban-defeated/ USA v. Hagen Dockets: 21-11273, 21-11279 Opinion Date: February 27, 2023 Judge: Stephen Andrew Higginson Areas of Law: Constitutional Law, Criminal Law, White Collar Crime The Hagens (Leah and Michael) were convicted by a jury of conspiring to defraud the United States and to pay and receive health care kickbacks. Each was sentenced to 151 months of imprisonment, followed by three years of supervised release, plus restitution. Both Hagens appealed, arguing that the district court erred in excluding evidence, refusing to instruct the jury on an affirmative defense, and imposing a sentencing enhancement and restitution. The Fifth Circuit affirmed the Hagens' convictions and sentences. The court found that the excluded evidence, which consisted of witness testimony, was irrelevant and cumulative. Thus, the district court did not err in excluding it. Even if the exclusion of the evidence wasn't warranted, the court determined that any error below was harmless. The court also held that the Hagans failed to put sufficient evidence forward justifying their requested jury charge on the safe-harbor affirmative defense. Finally, the court rejected the Hagens' claim that the lower court erred in applying a sentencing enhancement for the couple's "sophisticated money laundering scheme." The court explained that evidence suggested the Hagens manipulated their wire transfer payments to conceal the kickback scheme, which justified the enhancement. Read Opinion US Court of Appeals for the Fifth Circuit Opinions Kling v. Hebert Docket: 21-30658 Opinion Date: February 17, 2023 Judge: James L. Dennis Areas of Law: Civil Procedure, Civil Rights, Constitutional Law, Labor & Employment Law After prevailing in state court on claims that he was fired in retaliation for exercising his state constitutional right to freedom of expression, Plaintiff filed a federal suit alleging the same set of facts but asserting for the first time a First Amendment claim. The district court dismissed Plaintiff’s suit, finding that Defendants’ factual attack showed that the only remedy not barred by sovereign immunity was impossible to grant and that Kling’s claim was prescribed. On appeal, Plaintiff contends that a factual attack on a district court’s subject matter jurisdiction is improper at the pleadings stage and that his state lawsuit interrupted prescription on his newly asserted federal claim because both rely on the same set of operative facts. The Fifth Circuit concluded that the district court did not err in dismissing Plaintiff’s official capacity claims as barred by sovereign immunity and accordingly affirmed that ruling in the district court’s decision. However, because there are no clear controlling precedents from the Louisiana Supreme Court as to whether prescription on Plaintiff’s federal claim was interrupted by his state action, the court certified to that court to answer the following: In Louisiana, under what circumstances, if any, does the commencement of a suit in a court of competent jurisdiction and venue interrupt prescription as to causes of action, understood as legal claims rather than the facts giving rise to them, not asserted in that suit? Read Opinion United States Court of Appeals for the Fifth Circuit Percy Taylor, Plaintiff—Appellee, versus James LeBlanc, Secretary, Defendant—Appellant. Appeal from the United States District Court for the Middle District of Louisiana USDC No. 3:21-CV-72 Constitutional Law: "qualified immunity protects government officials from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quotation omitted). “A public official is entitled to qualified immunity unless the plaintiff demonstrates that (1) the defendant violated the plaintiff’s constitutional rights and (2) the defendant’s actions were objectively unreasonable in light of clearly established law at the time of the violation.” Porter, 659 F.3d at 445. “Both steps in the qualified immunity analysis are questions of law.” Wyatt v. Fletcher, 718 F.3d 496, 503 (5th Cir. 2013). We are free to decide which prong of the qualified immunity analysis to address first. See Pearson, 555 U.S. at 242 (“[T]he judges of the district courts and the courts of appeals are in the best position to determine the order of decisionmaking that will best facilitate the fair and efficient disposition of each [qualified immunity] case.”). We proceed to consider whether Secretary LeBlanc’s “actions were objectively unreasonable in light of clearly established law at the time of the violation.” Porter, 659 F.3d at 445. “The second prong of the qualified immunity test is better understood as two separate inquiries: whether the allegedly violated constitutional rights were clearly established at the time of the incident; and, if so, whether the conduct of the defendants was objectively unreasonable in the light of that then clearly established law.” Hare, 135 F.3d at 326 (emphasis omitted). Case: 21-30625 Document: 00516645415 Page: 6 Date Filed: 02/14/2023 No. 21-30625 7 It is clearly established that inmates have the right to timely release from prison consistent with the terms of their sentences. See Crittindon, 37 F.4th at 188; Porter, 659 F.3d at 445. Taylor’s claim against Secretary LeBlanc nevertheless fails because he has forfeited any argument that the Secretary’s conduct was objectively unreasonable. The objectively unreasonable standard is not “that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful; but it is . . . that in the light of pre-existing law the unlawfulness must be apparent.” Hope v. Pelzer, 536 U.S. 730, 739 (2002) (citation omitted). The critical consideration is fair warning. See id. at 739– 41. “The relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable official that his conduct was unlawful in the situation he confronted.” Saucier v. Katz, 533 U.S. 194, 202 (2001), overruled in part on other grounds by Pearson, 555 U.S. at 236. Taylor does not present any meritorious argument that Secretary LeBlanc acted in an objectively unreasonable manner in this case. To begin with, he argues that whether Secretary LeBlanc acted objectively unreasonably is a fact question not amenable to appellate review at this stage in the proceedings. But we have long held precisely the opposite. Whether “a given course of conduct would be objectively unreasonable in light of clearly established law” is a “purely legal question” and plainly within our jurisdiction on interlocutory review. Kinney v. Weaver, 367 F.3d 337, 347 (5th Cir. 2004). See also Wyatt, 718 F.3d at 503 (noting both steps of the qualified immunity analysis “are questions of law”). To the extent that Taylor argues the merits, it’s inadequately briefed. Taylor’s entire presentation on the issue of objective unreasonableness amounts to just this single conclusory statement: “It is inherently Case: 21-30625 Document: 00516645415 Page: 7 Date Filed: 02/14/2023 No. 21-30625 8 unreasonable for the secretary . . . to fail to enact policies and procedures to ensure the prompt release of inmates who have served their sentences in accordance to law.” A single, unsupported sentence isn’t enough to adequately brief the issue. See Melgar v. T.B. Butler Publ’g Co., Inc., 931 F.3d 375, 382 n.6 (5th Cir. 2019) (noting that when an “issue [is] inadequately briefed, it is forfeited”). To be sure, we have said that forfeiture principles may apply “more leniently when the party who fails to brief an issue is the appellee” rather than the appellant. Hernandez v. Garcia Pena, 820 F.3d 782, 786 n.3 (5th Cir. 2016). But Taylor bears the burden on the issue of objective unreasonableness. See, e.g., Angulo v. Brown, 978 F.3d 942, 949 (5th Cir. 2020) (“The plaintiff has the burden to negate a properly raised defense of qualified immunity.”). And he has not meaningfully briefed that issue. See, e.g., Hornbeck Offshore Servs., L.L.C. v. Salazar, 713 F.3d 787, 796 (5th Cir. 2013) (applying forfeiture to the appellee because an issue “has not been meaningfully briefed”). We reverse www.ca5.uscourts.gov/opinions/pub/21/21-30625-CV0.pdf USA v. Rahimi Docket: 21-11001 Opinion Date: February 2, 2023 Judge: Cory T. Wilson Areas of Law: Constitutional Law, Criminal Law Defendant brought a facial challenge to Section 922(g)(8). The district court and a prior panel upheld the statute, applying the Fifth Circuit’s pre-Bruen precedent. Defendant filed a petition for rehearing en banc; while the petition was pending, the Supreme Court decided Bruen. The prior panel withdrew its opinion and requested a supplemental briefing on the impact of that case on this one. The Fifth Circuit reversed the district court’s ruling and vacated Defendant’s conviction. The court held that Bruen requires the court to re-evaluate its Second Amendment jurisprudence and that under Bruen, Section 922(g)(8) fails to pass constitutional muster. The court explained that the Government failed to demonstrate that Section 922(g)(8)’s restriction of the Second Amendment right fits within the Nation’s historical tradition of firearm regulation. The Government’s proffered analogues falter under one or both of the metrics the Supreme Court articulated in Bruen as the baseline for measuring “relevantly similar” analogues: “how and why the regulations burden a law-abiding citizen’s right to armed self-defense.” As a result, Section 922(g)(8) falls outside the class of firearm regulations countenanced by the Second Amendment. Read Opinion Louisiana Supreme Court Opinions Hidden Grove, LLC v. Brauns Docket: 2022-C-00757 Opinion Date: January 27, 2023 Judge: Crichton Areas of Law: Civil Procedure, Contracts, Real Estate & Property Law This case arose from a dispute regarding the excavation of lots located in the The Grove Subdivision between plaintiff Hidden Grove LLC (“Hidden Grove”), the developer of The Grove, and homeowner defendants Richard and Lisa Brauns (the Braunses). In 2011, the Braunses purchased a home located on Lot 14 of The Grove from a third party not involved in this litigation. The next day, the Braunses purchased Lot 15 from Hidden Grove for $100,000. They also acquired a right of first refusal to purchase Lots 16 and 17. The surface elevations of Lots 16 and 17 were eight feet higher than that of Lot 15. Because the Braunses intended to add on to their home and build a swimming pool on Lot 15, they sought to lower the elevation of Lots 16 and 17 to match the elevation of the lots previously purchased. Hidden Grove agreed the Braunses could lower the elevation of Lots 16 and 17, at their own expense. Before the parties executed a written agreement setting forth the engineering specifications for the excavation, work began in January 2013 on oral permission of Hidden Grove. In June 2013, after the excavation was near completion, disputes arose between the parties, specifically as to whether the Braunses were required to extend the retaining wall onto Lots 16 and 17. When Richard Brauns told Hidden Grove that the wall would terminate at the boundary of Lot 15 and 16, Hidden Grove ordered the Braunses to stop work and “get off the property.” Hidden Grove filed suit against the Braunses alleging breach of contract and requesting specific performance of concluding the excavation and construction of a retaining wall through the backs of Lots 16 and 17. The Louisiana Supreme Court granted review in this matter to review the court of appeal’s determination that Hidden Grove could not assert a claim for enrichment without cause under Civil Code article 2298 for failure to establish the “no other remedy at law” element of the claim. The Court concluded the court of appeal erred and remanded the matter to the court of appeal for consideration of pretermitted issues. Read Opinion |
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