Sanchez v. Boh Bros. Construction Co.

615 So. 2d 12, 1993 La. App. LEXIS 947, 1993 WL 57846
CourtLouisiana Court of Appeal
DecidedFebruary 25, 1993
DocketNo. 92-CA-902
StatusPublished

This text of 615 So. 2d 12 (Sanchez v. Boh Bros. Construction Co.) 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
Sanchez v. Boh Bros. Construction Co., 615 So. 2d 12, 1993 La. App. LEXIS 947, 1993 WL 57846 (La. Ct. App. 1993).

Opinions

WICKER, Judge.

This appeal arises from a petition for damages filed on behalf of plaintiffs/appellants, Maria Sanchez, wife of/and Carlos Sanchez, against defendants/appellees, Boh Brothers Construction Company, Inc. and the Parish of Jefferson. The plaintiffs sought damages allegedly caused by construction work performed by Boh Brothers pursuant to a contract with Jefferson Parish. The trial judge rendered judgment in favor of the defendants and dismissed the suit. We affirm.

Mr. and Mrs. Sanchez purchased their home at 6301 Morton Street in 1979. In October, 1988 Boh Brothers began the renovation of an existing pumping station located in front of the Sanchez home and that of a next door neighbor. By January, 1989 only the clean-up work was performed. Mr. Sanchez filed a written complaint with Boh Brothers on February 28, 1989 alleging the following damage as the result of construction:

Cracks in the walls of living room, daughters [sic] bedroom, separation of window from frame in the kitchen, and a [sic] unleveling of the house in which there is a definite drop, to one side of the house.

The trial judge concluded “there was no evidence presented which proves that any conduct of the defendants caused the damage to the plaintiffs property.” The threshold issue is whether the trial judge was manifestly erroneous in so concluding.

The appellants have specified the following errors:

1. The trial court erred as a matter of law in not finding that the testimony of lay witnesses, which established that for twenty-six (26) years the plaintiff’s home was level but sank markedly to the rear after defendants’ work began, established a presumption that the work caused the damages;
2. In this case brought under La.C.C. art. 667, the trial court erred as a matter of law in finding that where the defendant presents an expert at trial it is incumbent upon the plaintiff to present expert testimony to rebut such testimony, and
3.The trial court manifestly erred in finding that the witness’ testimony disagreed as to when the damage to the home was first noticed.

We note at the outset that we disagree with the appellants’ contention the trial judge required them to present expert testimony. The trial judge did state in his reasons:

Plaintiffs failed to produce an expert to rebut defendant expert’s testimony and thereby failed to prove a link between the construction and any subsidence to the home.

However, we have read his entire reasons for judgment and are convinced reading that statement in connection with his entire reasons shows the trial judge placed no such requirement on the plaintiffs. The reasons presented below evidence the concern on the part of the trial judge that causation had not been proven by the lay witnesses and that expert testimony would have been persuasive. The trial judge wrote:

On or about October, 1988, defendant, Boh Brothers began construction of a pump station near plaintiff’s home. Defendants produced an expert at trial who stated there was no probability that the construction work caused the plaintiffs’ home to subside. Plaintiffs failed to produce an expert to rebut defendant expert’s testimony and thereby failed to prove a link between the construction and any subsidence to the home.
Further, evidence produced at trial indicated that the area in which the plaintiff’s home was located suffered from subsidence.
Additionally, the plaintiffs and the witnesses’ testimony all conflict as to the time when the damage to the home was noticed.
This Court finds that there was no evidence presented which proves that any conduct of the defendants caused the damage to the plaintiffs property.
Based on the foregoing the Court finds in favor of Boh Brothers and the Parish [14]*14of Jefferson, dismissing plaintiffs’ claims against these defendants, [emphasis added].

The trial judge correctly noted the inconsistent testimony on the part of the plaintiffs and their witnesses. At trial the following colloquy occurred during cross examination of Mr. Sanchez:

Q. Isn’t it a fact, Mr. Sanchez, that you don’t really know when this settlement started, do you? All you know is when you first noticed it, correct?
A. Of course.
Q. You don’t know when it started?
A. You know?
Q. Well, I’m asking you the question, sir. You don’t know, do you?
A. Nobody knows [emphasis added].

Mr. Sanchez testified during the years he lived in the house he had made no inspection for cracks. He first noticed cracks in his house when Boh Brothers started work on his street. He gave no date he first noted the leaning but said it was “later on.” He noticed doors closing on their own in October, November or December of 1988. Although he stated he complained to Boh Brothers in December, 1988, his complaint introduced into evidence, was dated and signed by him February 28, 1989. He admitted the written complaint was his Boh Brothers’ complaint.

Mrs. Sanchez also admitted she never inspected the house for cracks before the construction. She stated her husband complained to Boh Brothers a few days after the cracks were noticed. Although she testified she did not notice the back of the house was leaning until her daughter’s friend pointed it out, she did not state when this was pointed out to her, whether before or after the construction.

Christina Sanchez, Mr. and Mrs. Sanchez’ 16 year old daughter, testified around 1988 or 1989 a friend named Melissa brought to her attention for the first time that the house was leaning toward the rear. Melissa came over to her house at least once a year since 1983 or 1984.

Christina could not give a specific date as to when her friend enlightened her.

Jean Marie Allen, a neighbor living one house away from the Sanchez home, testified she had visited the home about five times a year over a 13-year period. She did not notice the house leaning toward the back until January, 1989.

The trial judge evidently concluded the plaintiffs failed to establish consistency on the part of themselves and the witnesses as to when the damage was noticed. Mr. Sanchez admitted he did not know when settlement started. Both he and his wife never inspected for cracks before the construction. Christina Sanchez could not give a definite time other than 1988 or 1989 as to when her friend pointed out the leaning to her. Allen testified she noticed the leaning in January, 1989.

The trial judge also reasoned that even if the plaintiffs had been consistent in establishing a time for the damage they had failed to prove causation. The record is devoid of any evidence of causation except for that of the defense expert.

John L. Pfeffer, an expert in the field of civil engineering, vibration, and differential settlement, testified as follows: Subsidence is a common problem in this particular area. It occurs even in houses on pilings. He inspected the Sanchez home on January 25, 1991. He measured the area from the cofferdam to the front corner of the house. This was over 25 feet. He also measured the distance to the rear. It was over 50 feet.

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Bluebook (online)
615 So. 2d 12, 1993 La. App. LEXIS 947, 1993 WL 57846, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sanchez-v-boh-bros-construction-co-lactapp-1993.