Hohensee v. Turner

216 So. 3d 883, 2014 La.App. 4 Cir. 0796, 2015 La. App. LEXIS 816
CourtLouisiana Court of Appeal
DecidedApril 22, 2015
DocketNo. 2014-CA-0796
StatusPublished
Cited by5 cases

This text of 216 So. 3d 883 (Hohensee v. Turner) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hohensee v. Turner, 216 So. 3d 883, 2014 La.App. 4 Cir. 0796, 2015 La. App. LEXIS 816 (La. Ct. App. 2015).

Opinions

DANIEL L. DYSART, Judge.

| jPlaintiff Martha Hohensee, appeals a partial summary judgment granted in favor of Raymond C. Bergeron, Jr., and Raymond C. Bergeron, Jr., Architects, [885]*885L.L.C. The ruling dismissed Bergeron from the case in his individual capacity, and dismissed plaintiffs claim against his company insofar as its liability for any construction-related issues. Hohensee also appeals the trial court’s grant of a motion to strike her expert’s report from the record. For the reasons that follow, we affirm the judgment of the trial court.

BACKGROUND:

Martha Hohensee sought the services of Raymond Bergeron, an architect, to design plans for her new home. Bergeron informed Hohensee that he did not do residential designs, but referred her to Sean Turner, an architectural designer (but not an architect) and contractor. Hohensee met with Turner, and subsequently he, through his business, Turner Design Collaborative (“TDC”), designed plans for Ho-hensee’s new home. As Turner was not a licensed architect or civil engineer, he 12asked, with Hohensee’s knowledge, Ber-geron to stamp the design plans so that Hohensee could obtain a building permit from the City of New Orleans.

Before the permit was granted, the City sent Bergeron a letter indicating that a few minor changes had to be made to the plans before the City would issue the permit. Bergeron gave the letter to Turner, who made the changes. Thereafter, Ho-hensee obtained the permit and construction began.

In addition to the contract Hohensee signed with TDC, she entered into a contract with Modern Classic Concepts, L.L.C. (“MCC”). Sean Turner and Charles Sexton were members of that limited liability company. During construction, changes were made to the original design, particularly adding a second sub-floor and enclosing the crawl space beneath the house with brick.1 Both Turner and Bergeron testified that Bergeron was never consulted about these changes to the original plans. Post-construction inspections also revealed that the house was not constructed at the proper base elevation.

Hohensee filed suit against Sean Turner, individually; TDC; Bergeron, individually; MCC; and various insurers. She later amended her petition to add Raymond C. Bergeron, Jr.—Architects, LLC, and Charles Sexton.2

Bergeron, individually, and Raymond C. Bergeron, Jr.—Architects, LLC (“RCB-Architects”), filed a motion for partial summary judgment arguing that |sthere is no legal basis to hold Bergeron individually liable for any alleged actions of his professional limited liability company, and that neither he nor his company are liable for any construction-related issues in this case. Specifically, he alleges that he is not Hable for any components of the house that were: 1) not present on the plans, but constructed, or, 2) not constructed according to the plans. The motion acknowledges that because Hohensee’s experts have identified “deficiencies” with the design, genuine issues of fact exist. However, movers argue that their motion is limited to liability for construction of the house, not design.3

[886]*886The trial court granted partial summary judgment in favor of Bergeron, individually, and to RCB—Architects for constructed-related claims only.

Additionally, Bergeron filed a Motion to Strike the deposition of Roger Bailey, an expert retained by Hohensee, which was attached to her memorandum in opposition to the motion for partial judgment. Ber-geron argued that the deposition testimony was hearsay; the trial court agreed and granted the motion to strike.

Hohensee appeals arguing that the trial court erred as genuine issues of material fact exist as to RCB—Architects’ involvement in the construction of the house and as to Bergeron’s individual liability. Further, she contends the tidal court erred in striking the report of her expert.4

^DISCUSSION:

MOTION TO STRIKE

Hohensee argues that the trial court erred in striking the report of one of her expert’s, Roger Bailey, which was attached to her opposition to the motion impartial summary judgment. Bailey’s deposition was attached to defendants’ motion without the report. Hohensee claims that without the report, Bailey’s deposition testimony is distorted. Further, she argues that the report was certified and authenticated by Bailey in his deposition testimony and in an affidavit which was made a part of the trial court record prior to the summary judgment proceedings.

Defendants argue that the report is unauthenticated hearsay and is thus impermissible evidence for purposes of opposing a summary judgment.

First, we note that “evidentiary rulings by the trial court are reviewed under an abuse of discretion standard.” 727 Toulouse, L.L.C. v. Bistro at the Maison De Ville, L.L.C., 12-1014, p. 19 (La. App. 4 Cir. 8/21/13), 122 So.3d 1152, 1163. Second, generally, a report prepared by an expert is not admissible because it is hearsay. See Guzzardo v. Town of Greensburg, 563 So.2d 424, 426 (La.App. 1st Cir. 1990). Unless an attesting affidavit is attached, expert reports standing alone, are not admissible. See Independent Fire Ins. Co. v. Sunbeam Corp., 99-2181, pp. 18-19 (La.2/29/00), 755 So.2d 226, 237 (“Article 967 of the Louisiana Rules of | sCivil Procedure does not preclude from consideration expert opinion testimony in the form of an affidavit or deposition submitted in support of or opposition to a motion for summary judgment.”)(emphasis added.).

“[Unverified documents, such as letters or reports, annexed to motions for summary judgment are not self-proving and therefore will not be considered; ‘merely stapling them to a motion for summary judgment’ does not “magically” transform such documents into competent summary judgment evidence.” Williams v. Memorial Medical Center, 03-1806, p. 14 (La.App. 4 Cir. 3/17/04), 870 So.2d 1044, 1053, citing Schully v. Hughes, 00-2605, p. 5 (La.App. 4 Cir. 6/5/02), 820 So.2d 1219, 1222. Contrary to Hohensee’s assertion, attaching the report to her expert’s deposition does not create competent summary judgment evidence. Marino v. Parish of St. Charles, 09-0197, p. 7 (La.App. 5 Cir. 10/27/09), 27 So.3d 926, 930-931.

Our review of Bailey’s deposition testimony reveals that, although he was examined thoroughly as to the contents of his report, it was not attached or made a part of Bailey’s testimony. As such, Bailey’s report is not competent evidence suitable for opposing a motion for summary judg[887]*887ment, as it is unsworn. The expert report itself is not self-proving. Id. 09-197, p. 7, 27 So.3d at 930.

Thus, applying the above principles, we do not find that the trial court abused its discretion in granting defendants’ motion to strike Bailey’s report.

|flMOTION FOR PARTIAL SUMMARY JUDGMENT

Hohensee also argues that the trial court erred in granting defendants’ Motion for Partial Summary Judgment, dismissing Bergeron in his individual capacity, and RCB Architects relative to constructed-related issues.

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216 So. 3d 883, 2014 La.App. 4 Cir. 0796, 2015 La. App. LEXIS 816, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hohensee-v-turner-lactapp-2015.