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Condo chaos

Condo chaos

October 26
07:59 2020

Condo chaos

Wiley Verstappen entered into a contract with Robert Saavedra and his construction company, R.S. Homes, LLC, to perform construction renovations throughout her condominium. The initial estimated cost of the renovations was approximately $121,733.98. On September 9, 2010, the day before the scheduled renovation completion date, a fire occurred at the condominium. The condominium sustained fire, water, and smoke damage. Thereafter, Verstappen hired Crane Builders to repair the damage and complete the condominium renovations. She also filed a claim with her insurer, Fireman’s Fund Insurance Company, for repairs required as a result of the fire damage.

On September 9, 2011, Verstappen filed a petition for damages against Saavedra and R.S. Homes alleging breach of contract, unfair trade practices, negligence, conversion of funds for unauthorized use, and breach of fiduciary duty.

On October 1, 2013, Verstappen filed a supplemental and amending petition for damages. She asserted that Saavedra’s negligence caused the fire because he failed to properly remove sawdust material after re-sanding the floor.

On September 24, 2018, the jury returned a verdict partially in Verstappen’s favor. Specifically, the jury found that while R.S. Homes did not breach the contract with Verstappen, Saavedra converted funds. The jury awarded Verstappen $18,546.56 on the conversion claim. It was further found that R.S. Homes’ policy with United Fire and Indemnity Company did not provide coverage for conversion; thus the insurer was not obligated to pay the judgment rendered by the jury.

On November 8, 2018, Verstappen filed a motion for JNOV (judgment notwithstanding the verdict) or, alternatively, a motion for a new trial. She maintained that at trial she established that R.S. Homes breached its contract with her; the jury’s finding of conversion was inconsistent with its finding that there was no breach of contract; the jury instruction regarding the independent contractor defense misled the jury; the jury foreperson violated the court’s instruction by commenting about the case on social media; and one of the jurors slept during substantial portions of the trial.

On February 26, 2019, the court denied Verstappen’s motion for JNOV and motion for a new trial. Verstappen appealed.

According to the appellate court, to prove liability caused by defective workmanship, a party must establish: (1) the nature and existence of the defects; (2) that faulty materials or workmanship caused the defects; and (3) the cost associated with the repairs of the defects.

Verstappen’s arguments, the court said, could be classified into five categories: (1) independent contractor defense; (2) evidence of Saavedra’s current financial status; (3) jury findings; (4) juror conduct; and (5) JNOV.

Verstappen argued that the trial court erred in allowing R.S. Homes to assert the independent contractor defense when it was not pled as an affirmative defense in the answer.

R.S. Homes’ assertion that a party for whom it held no responsibility caused the fire put Verstappen on notice that it was presenting that defense. Therefore, Verstappen was notified of the independent contractor defense.

Verstappen maintained that the jury instruction regarding the independent contractor defense was misleading. She argued that the trial court did not clarify that the independent contractor defense does not apply to breach of contract claims. The jury instruction at issue provided, in pertinent part:

Generally, the general contractor is not liable for the negligence of an independent contractor who performed work for them, unless the general contractor controlled the work or the work was intrinsically or inherently dangerous.

Verstappen alleged issues surrounding the subcontractors and their conduct regarding R.S. Homes’ performance. Thus the independent contractor defense was not an affirmative defense that was required to be specifically pled in R.S. Homes’ answer.

Verstappen submitted that evidence was improperly allowed in violation of state statutes. Specifically, she argued that testimony from Saavedra that he did not own a vehicle because he could not afford the payments allowed the jury to be sympathetic to his current financial status. She asserted that this evidence was not relevant nor did its probative value outweigh its prejudicial effect. The court found this argument to be meritless.

Verstappen argued that the jury erred in finding that R.S. Homes did not breach the contract. She submitted that R.S. Homes breached the contract by providing substandard workmanship; delivering a fire-damaged property; failing to pay and supervise subcontractors; and Saavedra falsely claiming to be a general contractor. The court cited the jury’s finding that R.S. Homes did not breach the contract and held that this finding was reasonable.

Verstappen argued that the trial court should have declared a mistrial, or ordered a new trial, because of the conduct of two jurors. Specifically, she maintained that a mistrial was warranted because one juror slept through substantial portions of the trial, missing certain details of her testimony. She also asserted that a new trial should have been granted because one juror posted about the sleeping juror on social media.

Verstappen did not demonstrate how she was prejudiced by the sleeping juror, nor did she prove that this conduct made it impossible to proceed to a proper judgment. Given that Verstappen had an opportunity to remove the juror and chose not to, the appellate court found that the trial court did not err in declining to declare a mistrial.

Verstappen sought review of the trial court’s February 26, 2019, judgment denying her motion for JNOV or in the alternative her motion for a new trial. Although Verstappen’s brief did not provide the reasons why the JNOV or motion for new trial should have been granted, a review of the record indicated that her motion was based on the assignments of error indicated in this appeal.

The appellate court said the jury’s findings were reasonably supported by the evidence. The court found that the trial court did not err in denying Verstappen’s motion for JNOV and motion for a new trial. The judgment of the trial court was affirmed.

Fireman’s Fund Insurance Company v. R.S. Homes, LLC—Court of Appeal of Louisiana, Fourth Circuit—March 25, 2020—NO. 2019-CA-0621, NO. 2019-CA-0622.

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