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Brenner v. Zaleski

Court of Appeals of Louisiana, Fourth Circuit

June 3, 2015

MICHAEL BRENNER AND JACKIE BRENNER
v.
DONALD ZALESKI

Page 77

APPEAL FROM FIRST CITY COURT OF NEW ORLEANS. NO. 2013-52959, SECTION " B" . Honorable Angelique A. Reed, Judge.

Michael J. Winsberg, New Orleans, LA, COUNSEL FOR PLAINTIFF/APPELLANT.

Jack A. Ricci, Michael S. Ricci, Jonathan L. Schultis, Joseph S. Pappalardo, Jr., RICCI PARTNERS, LLC, New Orleans, LA, COUNSEL FOR DEFENDANT/APPELLEE.

(Court composed of Judge Max N. Tobias, Jr., Judge Edwin A. Lombard, Judge Sandra Cabrina Jenkins).

OPINION

Page 78

[2014-1323 La.App. 4 Cir. 1] This suit arises from a construction contract dispute between the Appellants, condominium owner Michael Brenner and his mother, Jackie Brenner (" the Brenners" ), and carpenter, Donald Zaleski. The Brenners seek review of First City Court's August 18, 2014 judgment dismissing their breach of contract claims with prejudice. Finding that the First City Court made a legal error in determining that the contract at issue was not breached, we reverse. Additionally, this matter is remanded for a determination of damages.

Facts and Procedural History

The Brenners retained Mr. Zaleski to build a wooden loft[1] in the ceiling of their condominium, which is located in New Orleans.[2] The parties executed a contract on January 11, 2013. The contract did not contain a clause or wording relating to the termination of Mr. Zaleski's services. Pursuant to the contract, Mr. Zaleski was to be paid $12,677.00, of which he was paid 50%, or $6,338.00, at the [2014-1323 La.App. 4 Cir. 2] start of construction. The record reflects the Brenners increased the initial scope of Mr. Zaleski's work, and an invoice update was later issued by him reflecting that he began to receive payments from the Brenners upon completion of certain tasks.

After Mr. Zaleski began building the loft,[3] but prior to his completion of the project, the Brenners observed what they believed to be cosmetic flaws in his work. Ms. Brenner e-mailed Mr. Zaleski regarding the Brenners' concerns, which she discussed with Mr. Zaleski the following day. Ms. Brenner alleges that Mr. Zaleski became aggressive during their conversation. Thereafter, the Brenners fired Mr. Zaleski on or about April 22, 2013. However, post-termination, they discovered a substantive defect: the loft subflooring installed by Mr. Zaleski was moving or flexing.

Subsequently, home inspector and civil engineer Friedrich Gurtler was hired by the Brenners to inspect Mr. Zaleski's work, particularly the condition of the subflooring. Mr. Gurtler opined that Mr. Zaleski's work was substandard and not structurally sound. He recommended the loft be reinforced with steel support columns, which the Brenners installed.

The Brenners[4] filed suit against Mr. Zaleski in First City Court alleging he breached his contract as well as the implied warranty of good workmanship. Following a bench trial, the First City Court dismissed the Brenners' lawsuit with prejudice. The Brenners timely appealed and raise two (2) assignments of error:

1. The First City Court erred in finding that Mr. Zaleski ...

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