KARLA D. DAVIS AND DOLLIE DAVIS
NOLA HOME CONSTRUCTION, L.L.C., JOSE GARCIA AND ABC INSURANCE COMPANY
FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2010-04069,
DIVISION "N-8" Honorable Ethel Simms Julien, Judge
R. Burgos, Robert J. Daigre, Gabriel O. Mondino, George M.
McGregor, BURGOS & ASSOCIATES, LLC, Roderick
“Rico” Alvendia ALVENDIA KELLY & DEMAREST,
L.L.C., COUNSEL FOR PLAINTIFFS/APPELLEES.
W. Myers, George B. Hall, Jr. PHELPS DUNBAR LLP, COUNSEL FOR
composed of Chief Judge James F. McKay, III, Judge Rosemary
Ledet, Judge Sandra Cabrina Jenkins
Rosemary Ledet Judge.
a suit for a breach of a construction contract and damages
coupled with an insurance coverage dispute. The plaintiffs,
Karla D. Davis and Dollie Davis (the "Plaintiffs"),
filed suit against the general contractor, Eddie Beard, LLC
("Beard"); the subcontractor, Jose Garcia d/b/a
NOLA Home Construction, L.L.C. ("NOLA Home"); and
Beard's insurer, Catlin Specialty Insurance Company
("Catlin") (collectively the
"Defendants"). From the trial court's judgment
in the Plaintiffs' favor, Catlin appeals. For the reasons
that follow, we affirm.
AND PROCEDURAL BACKGROUND
August 2005, the Plaintiffs' house located at 5155
Marigny Street in New Orleans, Louisiana (the
"Property"), sustained severe damage as a result of
Hurricane Katrina. Sometime thereafter, the house was
demolished. The Plaintiffs secured a construction loan from
JPMorgan Chase Bank, N.A. ("Chase Bank") and began
the rebuilding process. In the fall of 2008, the Plaintiffs
contracted with Beard, NOLA Home, and NOLA Home's
managing agent, Mr. Garcia, for the construction of new house
at that location. Construction on the Plaintiffs' house
began around December 2008 with Beard as the general
contractor and NOLA Home as the subcontractor. Catlin issued
a commercial general liability insurance policy to Beard with
an effective date of January 1, 2009.
February 16, 2010, Beard informed Mr. Garcia that NOLA Home
was in default of their contract for failing to provide
licenses and proof of insurance. At the same time, Beard also
notified Mr. Garcia of multiple deficiencies in the
construction, as well as uncompleted work, and requested that
NOLA Home take immediate remedial measures. On February 22,
2010, Beard notified Mr. Garcia that NOLA Home was terminated
from the construction project for failing to provide proof of
insurance and failing to correct the deficiencies.
April 22, 2010, the Plaintiffs filed a petition for breach of
contract and damages against Mr. Garcia, NOLA Home, and NOLA
Home's insurance company due to faulty construction,
failure to complete construction, and failure to repair the
faulty workmanship. On April 28, 2010, the Plaintiffs filed a
first supplemental and amending petition adding that the
defective construction and failure to complete construction
caused the house to sustain further damage, rendering it
uninhabitable. On May 11, 2011, the Plaintiffs filed a second
supplemental and amending petition adding Beard and its
unnamed insurer as defendants. On October 10, 2011, the
Plaintiffs filed a third supplemental and amending petition
naming Catlin as Beard's insurer.
January 10, 2012, Catlin filed a motion for summary judgment
on the issue of coverage of the Plaintiffs' claims.
Following a hearing, the trial court granted the motion for
summary judgment and dismissed Catlin with prejudice. On May
29, 2012, the Plaintiffs filed a motion for new trial, which
the trial court granted. In its reasons for judgment, the
trial court stated that it reversed "its earlier
decision solely on the grounds that defendant [Catlin] failed
to produce authentic evidence in the form of certified
documents and/or affidavits in support of its Motion for
September 28, 2015, a jury trial commenced on the issues of
liability and coverage. Contemporaneously, a bench trial was
held on the issue of Catlin's coverage. At the close of
the Plaintiffs' case, Catlin filed a motion for directed
verdict or involuntary dismissal. Catlin argued that
exclusions j(5) and j(6) (the "Exclusions") barred
coverage under its insurance policy. The trial court took the
matter under advisement and ordered additional briefing.
all the evidence was submitted, the Plaintiffs moved for a
directed verdict on multiple issues. The trial court granted the
Plaintiffs' motion and found that the Property sustained
damage before July 28, 2009. The trial court took the issue of
solidary liability under advisement and denied directed
verdict as to the remaining issues.
October 2, 2015, the jury returned a verdict in the
Plaintiffs' favor awarding $1, 397, 018.06 in damages
against Beard, Mr. Garcia, and NOLA Home. On October 22,
2015, the trial court entered judgment reflecting the
jury's verdict and noted that the issue of coverage was
taken under advisement. On December 10, 2015, the trial court
granted Catlin's involuntary dismissal regarding
coverage. The Plaintiffs thereafter filed a motion for new
trial on the involuntary dismissal of Catlin. On February 19,
2016, the matter was heard by the trial court. At the
conclusion of the hearing, the trial court held as follows:
As to the motion for new trial, the Court is hereby granting
the motion for new trail [sic], finding that specifically the
affirmative defenses as relates to J-5 and J-6 were not
raised as affirmative defenses; and therefore, Counsel
didn't appropriately avail herself of those exclusions.
Then given the exclusions that were argued, the burden would
have shifted to determine the damage; and there was no
testimony specifically as to what damage was caused during
the policy period and what damage was caused after the policy
So, given those things, the Court is granting a motion for
March 7, 2016, the trial court issued it ruling granting the
Plaintiffs' motion for new trial and found coverage under
Catlin's policy issued to Beard. From that judgment,
Catlin appealed. Finding the judgment lacked definitive
decretal language, this court dismissed the appeal without
prejudice and remanded the matter for further proceedings.
Davis v. NOLA Home Const., LLC, 16-577 (La.App. 4
Cir. 7/29/16) (unpub.).
September 1, 2016, the Plaintiffs filed a motion to amend the
March 7, 2016 judgment. Following a hearing, the trial court,
on September 28, 2016, rendered an amended judgment (the
"Amended Judgment") in the Plaintiffs' favor
and against Catlin as the insurer of Beard. This appeal
Catlin pointed out in its brief on appeal, the Amended
Judgment failed to include proper decretal language and thus
was not a final judgment. This court, therefore, ordered the
parties to supplement the record with a copy of a final,
appealable judgment. On May 10, 2017, the trial court issued
an amended judgment entitled "Amended Final Judgment,
" which the Plaintiffs submitted to this court. The
Amended Final Judgment reads, in pertinent part, as follows:
IT IS ORDERED, ADJUDGED, AND DECREED that, for the reasons
stated on the record on February 19, 2016, the Motion for
Directed Verdict and/or Involuntary Dismissal on behalf of
Catlin Specialty Insurance Company be and hereby is denied.
IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that there is
coverage under the policy issued by Catlin Specialty
Insurance Company to Eddie Beard, LLC, pursuant to the limits
of that policy;
THEREFORE, JUDGMENT BE AND IS HEREBY RENDERED in favor of
plaintiffs, Karla D. Davis and Dollie Davis against Eddie
Beard, LLC, Jose Garcia d/b/a NOLA Home Constructors, LLC,
and Catlin Specialty Insurance Company as the insurer of
Eddie Beard, LLC, in the full amount of ONE MILLION ($1, 000,
000.00) DOLLARS together with legal interest on that amount
from the date of judicial demand until paid, and for all
costs of these proceedings, which costs will be set on motion
filed by Plaintiffs. JUDGMENT IS FURTHER RENDERED in favor of
plaintiffs, Karla D. Davis and Dollie Davis against Eddie
Beard, LLC, Jose Garcia d/b/a NOLA Home Constructors, LLC in
the additional amount of THREE HUNDRED THOUSAND NINETY-SEVEN
THOUSAND EIGHTEEN AND 06/100 ($397, 018.06) DOLLARS, together
with legal interest on that amount from the date of judicial
the issues presented on appeal involve fact questions or
mixed questions of law and fact, the manifest error standard
applies; when the issues involve questions of law, the de
novo standard applies. Boes Iron Works, Inc. v. Gee
Cee Grp., Inc., 16-0207, p. 8 (La.App. 4 Cir. 11/16/16),
206 So.3d 938, 946, writ denied, 17-0040 (La.
2/10/17), ___ So.3d ___, ___, 2017 WL 744658, p.*1.
Summarizing the manifest error and de novo
standards, this court noted in Spencer v.
Chevron Corp., 16-0174, pp. 4-5 (La.App. 4 Cir.
9/28/16), 202 So.3d 1055, 1057-58, as follows:
Appellate courts review findings of fact using the manifest
error or clearly wrong standard of review. Hall v. Folger
Coffee Co., 03-1734, p. 9 (La. 4/14/04), 874 So.2d 90,
98. Thus, we will not set aside a trial "court's
finding of fact unless that finding is clearly wrong in light
of the record reviewed in its entirety." Id.
"In order to reverse a fact finder's determination
of fact, an appellate court must ... (1) find that a
reasonable factual basis does not exist for the finding, and
(2) further determine that the record establishes that the
fact finder is clearly wrong or manifestly erroneous."
Coutee v. Glob. Marine Drilling Co., 05-0756, p. 5
(La. 2/22/06), 924 So.2d 112, 116. We "must not re-weigh
the evidence or substitute [our] own factual findings because
[we] would have decided the case differently."
Id. "Where there are two permissible views of
the evidence, the fact finder's choice between them
cannot be manifestly erroneous or clearly wrong."
Id., 05-0756, pp. 5-6, 924 So.2d at 116. "This
particular standard of review is based, in part, on the trial
court's ability to better evaluate the testimony of live
witnesses, compared with an appellate court's sole
reliance upon a written record." A.S. v. D.S.,
14-1098, p. 9 (La.App. 4 Cir. 4/8/15), 165 So.3d 247, 253.
"The manifest error standard of review also applies to
mixed questions of law and fact." Id., 14-1098,
p. 10, 165 So.3d at 254.
When reviewing legal issues, an appellate court gives
"no special weight to the findings of the trial court,
but exercises its constitutional duty to review questions of
law and renders judgment on the record." Banks v.
New Orleans Police Dep't, 01-0859, p. 3 (La.App. 4
Cir. 9/25/02), 829 So.2d 511, 514. "A legal error occurs
when a trial court applies the incorrect principles of law
and such errors are prejudicial." Id.
the applicable standard of review in ruling on a motion for
new trial is whether the trial court abused its discretion.
Pitts v. Louisiana Med. Mut. Ins. Co., 16-1232, p.
10 (La. 3/15/17), ___ So.3d ___, ___, 2017 WL 1041228, p.*10
(citing Davis v. Witt, 02-3102, p. 19 (La. 7/2/03),
851 So.2d 1119, 1131; and Martin v. Heritage Manor S.
Nursing Home, 00-1023, p. 6 (La. 4/3/01), 784 So.2d 627,
ease of discussion, we divide our analysis of the issues
presented by Catlin into the following three categories: (i)
motion for new trial; ...