Veazey v. Elmwood Plantation Associates

625 So. 2d 675, 1993 WL 421964
CourtLouisiana Court of Appeal
DecidedOctober 13, 1993
Docket93-CA-284
StatusPublished
Cited by4 cases

This text of 625 So. 2d 675 (Veazey v. Elmwood Plantation Associates) 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
Veazey v. Elmwood Plantation Associates, 625 So. 2d 675, 1993 WL 421964 (La. Ct. App. 1993).

Opinion

625 So.2d 675 (1993)

Christi VEAZEY
v.
ELMWOOD PLANTATION ASSOCIATES, LTD. and Southmark Management Corporation.

No. 93-CA-284.

Court of Appeal of Louisiana, Fifth Circuit.

October 13, 1993.

*676 Charles R. Capdeville, Wanda T. Anderson, Law Offices of Charles R. Capdeville, Metairie, for defendant-appellant.

Jacob J. Amato, Jr., Lisa A. Dunn, Amato & Creely, Gretna, for plaintiff-appellee.

Before GAUDIN, GRISBAUM and DUFRESNE, JJ.

GRISBAUM, Judge.

This appeal arises out of a trial by jury involving the liability of an apartment complex management firm for the rape of one of its tenant. We affirm.

ISSUES

We are called upon to resolve numerous specific questions:

(1) Whether the trial court erred by allowing into evidence testimony concerning verbal promises of security that were not incorporated into the subsequent lease;

(2) Whether this Court's December 20, 1991 writ decision addressed the parol evidence rule, ergo establishing the law of the case;

(3) Whether the trial court erred in not applying La.C.C. art. 2716 whereby the lessee *677 and not the lessor would have been solely liable for the locks on the windows on the leased premises;

(4) Whether the trial court committed reversible error in failing to charge the jury that fault could be assessed between an unknown intentional tortfeasor (the rapist) and a negligent tortfeasor (the apartment complex);

(5) Whether the trial court erred in amending the jury's finding that the defendant was 60 percent at fault and the plaintiff was 40 percent at fault when there was a discrepancy between the jury's answers to the interrogatories and the general verdict; and

(6) Whether the trial court, upon granting the judgment notwithstanding the verdict (JNOV), erred in finding that the management of the apartment, Southmark Management Corporation (Southmark), was 100 percent at fault for the rape of the plaintiff.

BASIC RECORD FACTS AND PROCEDURAL HISTORY

On June 28, 1988, plaintiff, Christi Veazey, entered into a lease with Tonti Management Corporation (Tonti) for an apartment located in the Elmwood Plantation Apartments (Elmwood Apartment) complex. The Elmwood Apartment complex was sold within two weeks after plaintiff rented her apartment and defendant, Southmark, assumed the management duties.

At approximately 1:45 a.m. on October 3, 1988, plaintiff was raped by a man who entered her second-floor apartment through her bedroom window. Plaintiff filed suit on November 16, 1988, alleging that defendant, Southmark, was negligent in failing to provide security, failing to maintain the complex in a manner to discourage criminal activity, failing to provide adequate window locks and misrepresenting the amount of security and prior criminal occurrences.

Southmark made a third-party demand against the previous management company, Tonti. Tonti filed a motion for summary judgment, which was denied by the trial court. Tonti subsequently sought writs, which were granted. Hence, Tonti was dismissed.

In April 1992, Southmark filed for summary judgment, which was denied by the trial court. Southmark also filed a motion in limine seeking to prevent testimony, concerning oral promises allegedly made prior to the written lease, from being presented at trial. The trial court deferred ruling on the motion in limine to the merits. From both these rulings, Southmark sought writs, which were denied.

A four-day trial commenced on May 4, 1992, before a 12-person jury, and resulted in an inconsistent verdict. After noticing the discrepancy, Ms. Veazey filed a motion for clarification and, in the alternative, a JNOV or a new trial. The trial court granted the motion for clarification and the JNOV. It then found defendant, Southmark, 100 percent at fault.

ANALYSIS—ISSUE ONE

Initially, we are called upon to determine whether the trial court erred by allowing into evidence testimony concerning verbal promises of security that were not incorporated into the subsequent lease. The record reflects that Christi Veazey and her mother testified that the alleged promises of security were made prior to the signing of the written lease.

The general rule concerning parol evidence is set forth in La.C.C. art. 1848, which provides:

Testimonial or other evidence may not be admitted to negate or vary the contents of an authentic act or an act under private signature. Nevertheless, in the interest of justice, that evidence may be admitted to prove such circumstances as a vice of consent, or a simulation, or to prove that the written act was modified by a subsequent and valid oral agreement.
The pertinent lease language reads, to-wit:

Police protection is the function of the Jefferson Parish Sheriff's office. Tonti Management Corporation cannot be responsible for you or the contents of your apartment or automobile. Any guards seen on Tonti property have been employed to patrol our rental offices and *678 physical plant only. They are not for your personal protection.

Our statutory law provides an exception to the parol evidence rule in that parol evidence is admissible to prove a vice of consent. See La.C.C. art. 1848. Fraud is listed as a vice of consent in La.C.C. art. 1948 and is defined in La.C.C. art. 1953 as a misrepresentation. Accordingly, where misrepresentation is alleged, parol evidence, commonsensibly, is admissible to establish whether the allegation is true. First Financial Bank, FSB v. Austin, 514 So.2d 281 (La.App. 5th Cir.1987), writ denied, 515 So.2d 1112 (La.1987). Since plaintiff's petition specifically alleged that Southmark "misrepresented the amount of security," we find the plaintiff and her mother's testimony concerning the oral promises of security outside the written lease were properly admitted.

ANALYSIS—ISSUE TWO

Next, we are called upon to determine whether this Court's December 20, 1991 writ decision addressed the parol evidence rule, ergo establishing the law of the case.

"Law of the case" is a discretionary policy whereby an appellate court will not reconsider its prior rulings on an issue in a subsequent appeal in the same case. Ficarra v. Mount Vernon Fire Ins. Co., 527 So.2d 493 (La.App. 5th Cir.1988). This Court has previously held that the "law of the case" doctrine applies to previous decisions on writ applications as full appellate proceedings. Mihalopoulos v. Westwind Africa Line, Ltd., 511 So.2d 771 (La.App. 5th Cir.1987).

The appellant argues that when this Court granted Tonti's summary judgment in the writ decision rendered on December 20, 1991, it found that the parol evidence rule applied, and submits the ruling became the "law of the case." Therefore, appellant states that the parol evidence rule should have been applied at trial which would have prevented any testimony about oral promises of security allegedly made prior to the written lease.

We see that when this Court, on December 20, 1991 granted the writ regarding Tonti's motion for summary judgment, it simply stated:

After careful review of this application, we conclude there is no issue of material fact and the relator is entitled to judgment as a matter of law. Ergo, the trial court erred in not granting summary judgment on behalf of the relator, who we hereby dismiss with prejudice from these proceedings. See La.C.C.P. art. 968; Kiefer v. Whittaker, 468 So.2d 587 (La.App. 4th Cir.1985).

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Bluebook (online)
625 So. 2d 675, 1993 WL 421964, Counsel Stack Legal Research, https://law.counselstack.com/opinion/veazey-v-elmwood-plantation-associates-lactapp-1993.