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Zaveri v. Husers

Court of Appeals of Louisiana, Third Circuit

June 21, 2017

MUKESH R. ZAVERI, ET UX.
v.
DENIS LLOYD HUSERS, ET AL.

         APPEAL FROM THE FOURTEENTH JUDICIAL DISTRICT COURT PARISH OF CALCASIEU, NOS. 2006-5675 C/W 2007-1250 HONORABLE DAVID A. RITCHIE, DISTRICT JUDGE

          Hunter W. Lundy, Rudie R. Soileau, Jr., Lundy, Lundy, Soileau & South, Counsel for Defendants/Appellees: Denis Lloyd Husers Linda Husers.

          E.R. Robinson, III Attorney at Law, Counsel for Defendants/Appellees: Denis Lloyd Husers Linda Husers.

          Kenneth Michael Wright Kenneth Michael Wright, LLC, Counsel for Plaintiffs/Appellants: Mukesh R. Zaveri Kailish M. Zaveri.

          James David Cain, Jr. Loftin, Cain & LeBlanc, LLC, Counsel for Third-Party Appellee: City of Lake Charles.

          Court composed of John D. Saunders, Phyllis M. Keaty, and John E. Conery, Judges.

          PHYLLIS M. KEATY JUDGE.

         The matter at issue in these consolidated appeals arose after Mukesh and Kailash Zaveri built a large retaining wall between their lot and the neighboring lot of Denis and Linda Husers in conjunction with the Zaveri's construction of a residence on Prien Lake in Lake Charles, Louisiana. Following a bifurcated trial, judgment was rendered in favor of the Husers and against the Zaveris, Champion Custom Home Builders, LLC (Champion), and The City of Lake Charles (the City), in varying amounts. Thereafter, the Zaveris, the Husers, and Champion filed Motions for Judgment Notwithstanding the Verdict (JNOV), all of which were denied. The Zaveris appealed, and the Husers answered that appeal. For the following reasons, we affirm.

         FACTS AND PROCEDURAL HISTORY[1]

         The Zaveris purchased a partially developed lot at 3608 West Prien Lake Road in October 2005. The prior owners of the lot had built a bulkhead, wharf, and boathouse on the lake, and they had brought in some dirt to create a pad for a home which they intended to build at a later date. The front of the Zaveris' and Husers' lots had elevations of ten feet above sea level at the road and declined to sea level at the lake at the rear of the properties. The Husers have resided in their current house since 1994. Between then and the time the Zaveris purchased their lot in 2005, several hurricanes had struck the Lake Charles area and the Federal Emergency Management Agency (FEMA) required that all new homes be constructed at least ten feet above the base flood elevation.

         The Zaveris hired a Texas architect to draw plans to build a house consisting of approximately 8, 000 square feet of living area with just less than 12, 000 square feet under the roof. The plans included the creation of a three-sided retaining wall (the wall) which grew in height as it neared the lake to contain the dirt needed to achieve a level surface upon which to build the house. The Zavaris contracted with R-Mac Engineering Company, Inc. (R-Mac), a structural engineering firm based in Texas, to design the foundation and framing of the house, wall, and driveway. Although not licensed as such, Mr. Zaveri (Zaveri) was allowed to act as his own general contractor under a provision of Louisiana law which allows an individual to serve as the builder/contractor for a house he will maintain as a personal residence.[2]

         Zaveri submitted site plans and a FEMA Elevation Certificate to the City Planning Department and received a Certificate of Zoning and Land Use Compliance (the zoning certificate) on May 24, 2006. The zoning certificate was issued by Doug Burguires, the City's Director of Planning and Development. By signing the zoning certificate, Zaveri certified that all construction of his residence "will be in strict compliance with all zoning codes and regulations adopted by the City." Building Permit 06-3526 (the permit) was issued to Zaveri on May 24, 2006, and construction began soon thereafter. Throughout the construction project (the project), Zaveri consulted regularly with his close friend, Mike Adalas, a general contractor licensed in Texas with twenty-five-plus years of experience and the principal owner of Champion, a company specializing in the construction of large, custom homes.

         The first stage of the project involved construction of a retaining wall which, as originally designed by R-Mac, resembled an upside down T, with "toes" on either side of the vertical wall. By the time construction began, however, Zaveri had altered the design to remove the toe on the Husers' side of the wall which allowed the wall to be installed closer to the property line. Upon realizing the size and magnitude of the wall, which measured ten feet tall at its highest point near the lake, the Husers contacted the City to express their concerns that the permit was improperly issued because the project violated several of the City's zoning ordinances. In early November 2006, the Husers and the Zaveris met with the City Attorney in an attempt to address the Husers' complaints, to no avail. The Planning and Zoning Commission of the City of Lake Charles (the Commission) also reviewed the Husers' complaints and determined that the Zaveris' permit had been properly issued. Zaveri filed a revised site plan with the City, and while Mr. Burguires issued a second zoning certificate to Zaveri on November 28, 2006, he made the following notation on the Remarks or Special Conditions section of the form: "Revised Site Plan Exceeds Min Building Setbacks."

         The Zaveris filed a Petition for Declaratory Relief (the Petition) against the Husers on November 30, 2006, acknowledging that a conflict existed concerning the "appropriateness" of their construction project and requesting that the trial court render judgment "declaring the structure to be built pursuant to the plans to be not in violation of any Code provision or ordinance of the City of Lake Charles, thus allowing a reasonably prompt completion of the construction."

         On January 5, 2007, the Husers filed an Answer, Third Party Demand, and Reconventional Demand. In answer to the Petition, the Husers alleged that the Zaveris had committed multiple violations of City codes and ordinances, including those related to setbacks and bufferyards. The Husers submitted that the Zaveris would suffer no hardship and that the need for a retaining wall would be eliminated if the Zaveris minimized the size of their planned front yard from "over 134 feet" to "closer to the 30 foot minimum." The Husers' Third Party Demand named the City and requested a declaratory judgment stating that the Zavaris' permit application sought approval for construction that violated zoning ordinances and thus the permit was violative of zoning ordinances. The Husers sought permanent prohibitory injunctive relief enjoining the City from violating its zoning ordinances "by refusing to withdraw, cancel or revoke" the permit and by "failing to order Zaveris to remove all improvements erected . . . in violation of the Zoning Ordinances." The Husers sought damages against the City for the costs to mitigate their losses, costs to monitor the retaining wall for potential failure, the stigma and loss of value to their property, the loss of a tree, loss of enjoyment of life and property, and past and future mental anguish. Finally, the Husers' Reconventional Demand against the Zavaris sought a declaratory judgment stating that their building permit was improperly issued by the City because the construction and developments made and/or sought to be made on the property were violative of several zoning ordinances. [3] Due to the Zaveris' actions, the Husers sought damages against them identical to those they sought from the City.

         Later, in March 2007, the Husers filed a Petition for Certiorari and Review (the Husers Petition) naming as defendants the City, the Commission, and the Zaveris, requesting that the trial court overturn the Commission's denial of the Husers' appeal of the City's decision to issue a zoning certificate and a building permit to the Zaveris. In an Order dated April 25, 2007, the Petitions filed by the Zaveris and the Husers were consolidated by the trial court.

         In November 2007, the Husers added Champion as an additional third party defendant. In a supplemental reconventional demand filed in May 2008, the Husers claimed that the Zaveris' construction violated La.Civ.Code art. 667.[4] The Zaveris, the City, and Champion were formally put on notice in a pleading filed by the Husers in October 2014 that the wall was failing, that they were being "forced to mitigate their damages, " and that they were seeking damages for "loss of value, psychological injury, and stigma damages to [their] property".

         The matter proceeded to trial on September 28, 2015, and after hearing ten days of testimony, the jury returned a verdict finding that the wall was structurally unsound and that both the Zaveris and Champion committed fault that was a legal cause of the wall being structurally unsound. The jury additionally found that the Zaveri project was in violation of the zoning ordinance and that such violation was a legal cause of damages to the Husers. Conversely, the jury found no fault on the part of the Husers in failing to mitigate their damages. The jury apportioned fault amongst the defendants as follows: 1) 93% to the Zaveris, 2) 5% to Champion, and 3) 2% to the City. In addition, the jury determined that the following amounts of money would compensate the Husers for their losses:

Loss of Use and Enjoyment of Property

$ -0-

Loss of Value of Property/Stigma Damages

$125, 000.00

Cost of any Past Repair and Remedial Work

$8, 200.00

Cost of any Future Repair and Remedial Work

$400, 000.00

Past Loss of Trees, Plants and Other Landscaping

$ -0-

Future Loss of Trees, Plants and Other Landscaping

$15, 000.00

Mental Anguish, Anxiety, Inconvenience

$ -0-

         And Discomfort The trial court signed a Judgment on April 29, 2016, which incorporated the jury verdict. With regard to the administrative appeal filed by the Husers alleging that the Commission erred in not overturning the City's decision to issue a zoning certificate and a building permit to the Zaveris, the trial court entered judgment in favor of the Husers and against the Zaveris, Champion, and the City. Judgment was rendered in favor of the Husers and against each defendant in dollar amounts corresponding to the damages each owed according to the percentage of fault assigned to each by the jury. The defendants were also cast with court costs and expert fees totaling $25, 198.41 to be paid in accordance with the jury's fault apportionment. Motions for JNOV were filed by the Zaveris, the Husers, and Champion, all of which were denied following a hearing by Order dated August 12, 2016. Thereafter, the Zaveris filed an appeal, which the Husers answered.

         ASSIGNMENTS OF ERROR

         In their appeal, the Zaveris assert that the trial court committed legal error: 1) in allowing the Husers any award of damages based upon the evidence presented; 2) in denying their motion for JNOV addressing the award of stigma damages and in awarding special damages in excess of the evidence offered in support of those damages; 3) in its award of expert fees and costs; and 4) in granting the Husers' administrative appeal of the decision of the Commission.

         The Husers' answer to appeal seeks to have this court award damages in their favor for the loss of use and enjoyment of their property and for the mental anguish, anxiety, inconvenience, and discomfort that they allegedly suffered, thereby reversing the trial court's denial of their motion for JNOV. They also request that this court order the Zaveris to pay the costs incurred in both courts.

         DISCUSSION

         The Louisiana Supreme Court set out the general appellate standard of review in Rosell v. ESCO, 549 So.2d 840, 844 (La.1989) (some citations omitted):

It is well settled that a court of appeal may not set aside a trial court's or a jury's finding of fact in the absence of "manifest error" or unless it is "clearly wrong, " and where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. Arceneaux v. Domingue, 365 So.2d 1330, 1333 (La.1978); Canter v. Koehring, 283 So.2d 716, 724 (La.1973). The appellate review of fact is not completed by reading only so much of the record as will reveal a reasonable factual basis for the finding in the trial court, but if the trial court or jury findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Where there are two permissible views of the evidence, the factfinder's choice between them cannot be manifestly erroneous or clearly wrong.

         The supreme court later explained the concept of damages in Wainwright v. Fontenot, 00-492, pp. 5-6 (La. 10/17/00), 774 So.2d 70, 74, as follows:

The term "damages" refers to "pecuniary compensation, recompense, or satisfaction for an injury sustained." Fogle v. Feazel, 201 La. 899, 10 So.2d 695, 698 (1942). The most common type of damages in the delictual context is compensatory damages, which encompasses those damages "designed to place the plaintiff in the position in which he would have been if the tort had not been committed." Frank L. Maraist & Thomas C. Galligan, Jr., Louisiana Tort Law § 7-1 (Michie 1996) (footnotes omitted).
Compensatory damages are further divided into the broad categories of special damages and general damages. "Special damages are those which either must be specially pled or have a 'ready market value, ' i.e., the amount of the damages supposedly can be determined with relative certainty." Id. § 7-2 (footnotes omitted). Included under the heading of special damages are the plaintiff's medical expenses incurred as a result of the tort. 1 Damages in Tort Actions § 3.02[2][c][i] (Matthew Bender 2000). On the other hand, "[g]eneral damages are those which are inherently speculative in ...

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