PHILIP CASH, GLENDA CASH, AND PHILIP'S FAMILY PHARMACY, INC. Plaintiffs-Appellees
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
KING, & LANDRY, LLP By: Brady D. King, II Counsel for
SHOTWELL, BROWN, & SPERRY, A PLC By: C. A. Martin, III
Counsel for Appellees
WILLIAMS, STONE, and THOMPSON, JJ.
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.
AND PROCEDURAL HISTORY
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.
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.
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.
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.
ASSIGNMENTS OF ERROR
district court erred as a matter of law in concluding that
DOB was not entitled to the independent contractor defense;
district court erred in concluding that Plaintiffs carried
their burden of proving that Del-Ray was negligent and its
activities caused damage ...