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Hohensee v. Turner

Court of Appeals of Louisiana, Fourth Circuit

April 22, 2015

MARTHA HOHENSEE
v.
SEAN C. TURNER, TURNER DESIGN COLLABORATIVE, L.L.C., ABC INSURANCE COMPANY, RAYMOND C. BERGERON, JR., XYZ INSURANCE COMPANY, MODERN CLASSIC CONCEPTS, L.L.C. AND AMERICAN SAFETY INDEMNITY COMPANY

APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2010-10525, DIVISION "A" Honorable Tiffany G. Chase, Judge

Leonard M. Berins Gerald Wasserman GERALD WASSERMAN, LLC COUNSEL FOR PLAINTIFF/APPELLANT

Edward F. Rudiger, Jr. Lambert J. Hassinger, Jr. Jason A. Camelford GALLOWAY, JOHNSON, TOMPKINS, BURR & SMITH COUNSEL FOR DEFENDANT/APPELLEE

Court composed of Judge Terri F. Love, Judge Paul A. Bonin, Judge Daniel L. Dysart

Daniel L. Dysart Judge

Plaintiff Martha Hohensee, appeals a partial summary judgment granted in favor of Raymond C. Bergeron, Jr., and Raymond C. Bergeron, Jr., Architects, L.L.C. The ruling dismissed Bergeron from the case in his individual capacity, and dismissed plaintiff's claim against his company insofar as its liability for any construction-related issues. Hohensee also appeals the trial court's grant of a motion to strike her expert's report from the record. For the reasons that follow, we affirm the judgment of the trial court.

BACKGROUND:

Martha Hohensee sought the services of Raymond Bergeron, an architect, to design plans for her new home. Bergeron informed Hohensee that he did not do residential designs, but referred her to Sean Turner, an architectural designer (but not an architect) and contractor. Hohensee met with Turner, and subsequently he, through his business, Turner Design Collaborative ("TDC"), designed plans for Hohensee's new home. As Turner was not a licensed architect or civil engineer, he asked, with Hohensee's knowledge, Bergeron to stamp the design plans so that Hohensee could obtain a building permit from the City of New Orleans.

Before the permit was granted, the City sent Bergeron a letter indicating that a few minor changes had to be made to the plans before the City would issue the permit. Bergeron gave the letter to Turner, who made the changes. Thereafter, Hohensee obtained the permit and construction began.

In addition to the contract Hohensee signed with TDC, she entered into a contract with Modern Classic Concepts, L.L.C. ("MCC"). Sean Turner and Charles Sexton were members of that limited liability company. During construction, changes were made to the original design, particularly adding a second subfloor and enclosing the crawl space beneath the house with brick.[1] Both Turner and Bergeron testified that Bergeron was never consulted about these changes to the original plans. Post-construction inspections also revealed that the house was not constructed at the proper base elevation.

Hohensee filed suit against Sean Turner, individually; TDC; Bergeron, individually; MCC; and various insurers. She later amended her petition to add Raymond C. Bergeron, Jr. - Architects, LLC, and Charles Sexton.[2]

Bergeron, individually, and Raymond C. Bergeron, Jr. - Architects, LLC ("RCB-Architects"), filed a motion for partial summary judgment arguing that there is no legal basis to hold Bergeron individually liable for any alleged actions of his professional limited liability company, and that neither he nor his company are liable for any construction-related issues in this case. Specifically, he alleges that he is not liable for any components of the house that were: 1) not present on the plans, but constructed, or, 2) not constructed according to the plans. The motion acknowledges that because Hohensee's experts have identified "deficiencies" with the design, genuine issues of fact exist. However, movers argue that their motion is limited to liability for construction of the house, not design.[3]

The trial court granted partial summary judgment in favor of Bergeron, individually, and to RCB - Architects for constructed-related claims only.

Additionally, Bergeron filed a Motion to Strike the deposition of Roger Bailey, an expert retained by Hohensee, which was attached to her memorandum in opposition to the motion for partial judgment. Bergeron argued that the deposition testimony was hearsay; the trial court agreed and granted the motion to strike.

Hohensee appeals arguing that the trial court erred as genuine issues of material fact exist as to RCB - Architects' involvement in the construction of the house and as to Bergeron's individual liability. Further, she contends the trial court erred in striking the report of her expert.[4]

DISCUSSION:

MOTION TO STRIKE

Hohensee argues that the trial court erred in striking the report of one of her expert's, Roger Bailey, which was attached to her opposition to the motion for partial summary judgment. Bailey's deposition was attached to defendants' motion without the report. Hohensee claims that without the report, Bailey's deposition testimony is distorted. Further, she argues that the report was certified and authenticated by Bailey in his deposition testimony and in an affidavit which was made a part of the trial court record prior to the summary judgment proceedings.

Defendants argue that the report is unauthenticated hearsay and is thus impermissible evidence for purposes ...


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