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Cash v. Delhi Office Building, LLC

Court of Appeals of Louisiana, Second Circuit

September 25, 2019

PHILIP CASH, GLENDA CASH, AND PHILIP'S FAMILY PHARMACY, INC. Plaintiffs-Appellees
v.
DELHI OFFICE BUILDING, LLC Defendant-Appellant

          Appealed from the Fifth Judicial District Court for the Parish of Richland, Louisiana Trial Court No. 43, 157 Honorable Will Barham, Judge

          McNEW, KING, & LANDRY, LLP By: Brady D. King, II Counsel for Appellant

          SHOTWELL, BROWN, & SPERRY, A PLC By: C. A. Martin, III Counsel for Appellees

          Before WILLIAMS, STONE, and THOMPSON, JJ.

          THOMPSON, J.

         Defendant, Delhi Office Building, L.L.C. ("DOB"), appeals from the trial court's judgment in favor of Plaintiffs, Philip Cash, Glenda Cash, and Philip's Family Pharmacy, Inc. ("Pharmacy"), in which the court found that Plaintiffs met their burden of proof to establish: (1) that damage was caused to the roof of the Pharmacy by DOB's contractors and (2) that the present design of DOB's drainage system creates an additional flow of water onto the Pharmacy property. The trial court issued an award of damages to the Pharmacy to which the Pharmacy appealed the amount. For the following reasons, we affirm the trial court's judgment and leave intact the damage award.

         FACTS AND PROCEDURAL HISTORY

         On November 16, 2012, the Pharmacy filed suit in the 5th Judicial District Court requesting damages against DOB. The suit claims that the Pharmacy, which is adjacent to DOB, suffered damages as a result of DOB's roof renovation which it alleges resulted in the Pharmacy's roof developing leaks which allegedly resulted in assorted damages. The properties in question share a brick wall in between the two businesses, but each are independent, free-standing metal structures built within the confines of the brick walls. The metal structures are not connected to the brick walls but sit within 1-4 inches of the walls.

         In 2011, DOB hired "Del-Ray Construction" (hereinafter "Del-Ray") to renovate and re-design the roof of its building. Essentially, Del-Ray was tasked with the renovation of the roof and its gutter system. In addition to the roof re-design, DOB commissioned another entity to install a new HVAC unit on the roof. It is these renovations and installations that the Pharmacy contends were the cause of damages to its roof and subsequent water leakage into its building and the resulting damages. DOB contends that the water leaks experienced at the pharmacy began to occur long before the renovations took place and therefore DOB should not be held liable.

         An answer and reconventional demand to the Pharmacy's petition was filed by DOB on January 4, 2013, asserting three affirmative defenses and a reconventional demand against the Pharmacy for allegedly drilling holes into the building for installation of a security system which subsequently caused water leakage into DOB's building. When the security system was subsequently removed, the issue of DOB's reconventional demand resolved and is not before this court. On February 4, 2013, the Pharmacy filed an answer to the reconventional demand and asserted its own affirmative defenses therein. Thereafter, counsel for DOB was substituted and an amended and restated answer and reconventional demand was filed on August 26, 2014, wherein DOB directly asserted an "independent contractor defense" as provided by the principles of tort law contained in La. C.C. arts. 2315, et seq. and La. R.S. 9:2773.

         A bench trial was held on June 21 and 22, 2018. Written reasons for judgment were issued on November 5, 2018, and the trial court found in favor of the Pharmacy, but for an amount significantly less than the damage award sought by the Pharmacy. Judgment was rendered and signed on December 4, 2018. DOB filed a petition and order for suspensive appeal on January 8, 2019, with the order being signed on January 10, 2019. Subsequently, DOB converted the suspensive appeal to a devolutive appeal by order dated February 12, 2019. In its answer, the Pharmacy asserted a request for modification of the damage award in its favor.

         DOB'S ASSIGNMENTS OF ERROR

         1. The district court erred as a matter of law in concluding that DOB was not entitled to the independent contractor defense;

         2. The district court erred in concluding that Plaintiffs carried their burden of proving that Del-Ray was negligent and its activities caused damage ...


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