Gilbert v. Angel; Post-Trial Brief; Good Cites

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Gilbert v. Angel; Post-Trial Brief; Good Cites

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CONSTRUCTION ARBITRATION SERVICES [CAS]

TIMOTHY CLARK GILBERT and KAREN ROCKETT GILBERT

VERSUS

ROBERT ANGEL BUILDERS, INC.

CONSOLIDATED WITH

ROBERT ANGEL BUILDERS, INC.

VERSUS

TIMOTHY CLARK GILBERT and KAREN ROCKETT GILBERT

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CAS #05-22
POST-TRIAL BRIEF ON BEHALF OF TIMOTHY CLARK GILBERT and KAREN ROCKETT GILBERT

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Submitted by:

Bodenheimer, Jones & Szwak, LLC


By: ________________________________
David A. Szwak LBR# 21157
509 Market St., Suite 730
Mid South Tower
Shreveport, Louisiana 71101
[318] 221-6444
FAX 221-6555
ATTORNEYS FOR TIMOTHY CLARK GILBERT and KAREN ROCKETT GILBERT
Plaintiffs hired defendant to build a custom home on plaintiffs’ lot in Oak Alley Subdivision in Bossier City, Bossier Parish, Louisiana. The written Residential Construction Contract stated that Louisiana’s New Home Warranty Act [“NHWA”] [www.lslbc.louisiana.gov/pdf_files/NewHomeWarrantyAct.pdf; www.law.justia.com/louisiana/codes/123/123.html.] applied to the rights and duties between the parties. The subject home was not built correctly in multiple respects. Defendant did not complete construction timely under the contract. Plaintiffs had to move in and defendant failed to complete multiple punch-lists, which grew increasingly detailed over the course of the next year. After living in the home a mere 30 days, plaintiffs submitted a detailed punch list. Roughly every 30 days for the next six months, plaintiffs sent detailed punch-lists, once a month, to defendant. Plaintiffs testified about their efforts to have the home finished and to have defects addressed. Those involve two issues under the NHWA: completion [[The NHWA is not the exclusive remedy available to the Gilberts in their action against Angel based on Angel's failure to complete construction of home and, separately, as to design defects since Angel acted as designer as well. The Gilberts have asserted breach of contract claim, as to incomplete construction items, as well as claims under NHWA as to all defects. Thorn v. Caskey, 745 So.2d 653 [La. App. 2 Cir. 1999]. The NHWA was designed to protect the homeowner from faulty workmanship and materials, but not to insure completion of the construction of a home under the terms of the contract between the owner and builder. Thus, where the builder abandons construction of the home and fails to fulfill his obligations under the contract, he may be found liable in an action for breach of contract, but he may also be liable for breach of the warranties outlined in the NHWA. Thorn v. Caskey, 745 So.2d 653 [La. App. 2 Cir. 1999]. Where the building contractor, through his own negligence, is unable to complete the contract and thereupon abandons it, he is liable for the loss resulting, including the amount reasonably expended in minimizing such loss. Id.] and defects. At the outset, it is important to note that neither Angel or his expert provided any estimate to contradict plaintiff’s expert George “Geep” Moore’s estimate and testimony as to the cost to repair all of the defects in his report [noting the two minor items Mr. Moore and Mr. Gilbert repaired for which there was no charge of damage assessed]. Mr. Moore is President of the state-wide Louisiana Home Builder Association. Mr. Moore’s damage estimate is not refuted and, indeed, could not have been refuted. Patterson, Pages 203-206, Day 2, Trial Transcript. Angel’s only defense was that he could have repaired it essentially “for free” however clearly he did not do so and lost the ability to do so as discussed herein and at trial. If Mr. Moore was able to fix the problems when engaged to do so, then why couldn’t Angel fix the same problems during the first six [6] months? [Mr. Patterson testified: “Szwak: I understand. Did he ever offer you an explanation? Let me just say it in this fashion, Did you ever say to him: Robert, why the hell didn't you go down there and fix this house? Did you ever say that to him?
Patterson: Yes, sir.” Patterson, Page 206, Day 2, Trial Transcript. Mr. Patterson testified that Angel claimed he would not complete or repair the home because he did not get the $10,000 balance [which Angel failed to tell Mr. Patterson that Angel agreed to escrow a larger sum at closing due to his deficient work.]. Id. at 206-207.] Mr. Moore’s crews took two months to complete all punch-list tasks.

Plaintiffs noted several major problems and a number of smaller defects and incomplete items. As all parties testified, defects causing immediate damage require immediate repair. The leaking shower was a major problem. Patterson, Pages 172-173,187, Day 2, Trial Transcript. Mr. Patterson, Angel’s own expert, testified that the shower was not constructed properly. He found that the seat was not placed in the shower pan and leaked. Patterson, Pages 199, Day 2, Trial Transcript. While that is another source of the water leak, Geep Moore testified that the shower was not designed properly [Mr. Patterson testified in agreement that design flaws would pose liability for Angel. Pages 191-192, Day 2, Trial Transcript.] and had a massive water leak in the walls opposite the seat and adjacent to the seat. Water was leaking throughout the walls of the shower and migrating to the exterior of the home opposite the entrances and exits to the home. Damage in the walls was disclosed and shown once the walls were removed and photographed by Mr. Moore. [Mr. Patterson had only been shown Mr. Moore’s original report and photos and not the supplemental photos. Mr. Patterson had never been shown any of the evidence in this case, including all of the emails and punch-lists, etc., except for Mr. Moore’s original report. Pages 167,174-177, Day 2, Trial Transcript.] Mrs. Gilbert testified about finding water running [not merely seeping] out of the home exterior walls adjacent to the shower. Plaintiffs could not use the master shower up to and until it was completely torn out and replaced. Mr. Moore performed the work, long after Angel had multiple chances to fix it and refused to do so. In reality, Angel sought to try and lull the Gilberts past the NHWA statutes of limitations.

The leaking front doors lacked sill pans and were not properly designed, composed, or constructed/installed. [Mr. Patterson admitted that Mr. Moore’s explanation of the water intrusion problem was accurate and that a sill pan “certainly would help.” Pages 189-192, Day 2, Trial Transcript.] Angel, through his separate window and door company, supplied the doors and windows on this home. Angel also installed the windows and doors. Angel also designed the windows and doors on this home although the home was, in plans, drawn by an architect for a prior homeowner. The window and door specs are not listed in general home plans and it was Angel’s duty to design, supply and construct/install those doors and windows so as to prevent leaks. The leaking doors damaged the expensive hard wood floors in the home. Angel had improperly installed the 3/4" hard wood flooring by gluing it down, contrary to the national association guidelines for installation and as confirmed by Mr. Patterson. Pages 195-199, Day 2, Trial Transcript. The faulty installation resulted in more extensive floor removal [“shoveling it up”] and replacement costs. Patterson, Pages 200-202, Day 2, Trial Transcript. Angel suggested curing the front bed room doors water intrusion by sealing the doors shut, making the doors inoperable, and invited the Gilberts to lie to avoid code violations by labeling the room as a “study” despite the inclusion of a clothes closet and another study already designed and built in the home. The result would have lowered the value of the home and the Gilberts could not have listed the room as a bedroom when they decided to sell the home.

The front doors and multiple windows around the home received a finish which failed to last even six [6] months. Plaintiffs later learned that Angel, in supplying the doors and windows, had stored them on site and failed to prevent moisture intrusion. Even after placing them and installing them, Angel left them open to the elements and unfinished. After significant moisture intrusion, Angel placed deficient stain and coating on the doors and windows resulting in a very early breakdown in the finish and need to restore the wood around the home. Still other doors had “see-through” cracks in the wood and, even those that were painted on the rear of the home, were not properly painted or finished. Angel’s name was still written on the unpainted, metal, rear doors.

There were numerous trim and finish issues around the home which Angel would not ever complete. All of the parties concurred that 30 days and, at most, six weeks is adequate time to complete punch-list items. When the anniversary of one year approached, plaintiffs had their former son-in-law, who is a licensed Louisiana attorney, make written demand upon Angel. That notice complied, as did the early punch-lists, with written demand before the plaintiffs then had a right to commence their own repair work. LRS 9:3145. Angel still did not make any effort to complete the home or repair the defects. While, during the first several months after receipt of the first punch-list then follow up lists, Angel “dabbed paint”and “adjusted cabinet knobs” and such, Angel, by his own admission, never made any effort to repair the major items. [Mr. Patterson testified: “Szwak: Now, with regard to punch lists, I know you haven't reviewed them, but there is a continuum where there is showing where there is some of the work, caulking and dabbing of paint and such, cosmetic, small cosmetic issues, that were addressed. To your knowledge, when you reviewed this home did you find any evidence that Mr. Angel had undertaken the repair of the major items, the major items that you addressed in your report without giving a calculation as to what it would cost? Patterson: No, sir.” Page 207, Day 2, Trial Transcript. Also see pp. 208-209.] Angel could not tell us, at trial, of a single major item on the punch-list that he completed.

Mr. Moore testified that the numerous incomplete construction items and defects were “defects” and resulted from substandard workmanship and/or materials. [“...noncompliance with the building standards or due to other defects in materials or workmanship not regulated by building standards.” LRS 9:3144[A][1] [referenced language was added to this portion of the NHWA by Acts 1999, No. 649, §§1]. “Building standards” alone means “means the standards contained in the building code, mechanical-plumbing code, and electrical code in effect in the parish, city, or other local political subdivision where a home is to be located, at the time construction of that home is commenced, or, if the parish, city, or other local political subdivision has not adopted such codes, the Standard Building Code, together with any additional performance standards, if any, which the builder may undertake to be in compliance.” LRS 9:3144[2].] Mr. Moore’s testimony, unlike Angel’s testimony, was unequivocal. Angel’s testimony consisted of making excuses for his shortcomings and suggesting that plaintiffs somehow “settled” with him through his sister-in-law’s “carrot game.” Angel never refuted plaintiffs’ list of defects and admitted that he had agreed to repair them. Further, Angel never suggested that the Gilberts were unreasonable. Indeed, they were not. They spent over $550,000 for a home that they expected a quality product which is what they paid for.

Angel did not deny that plaintiffs’ complaints and punch-list items were defects and needed to be completed and fixed. Mr. Patterson did not deny that plaintiffs’ complaints and punch-list items were defects and needed to be completed and fixed. [Pages 166-167, Day 2, Trial Transcript: “Szwak: You thought that Mr. Moore's listing of the problems with this home was inaccurate? Patterson: No; not problems. Szwak: You agree with Mr. Moore's listing of problems with this home, but you felt like his listing was not builder friendly towards Robert; is that true? Patterson: Correct.”] Mr. Patterson only felt that two items were minor and was unaware that those items had been fixed at no charge and were the two items that plaintiffs did not seek damages for and were not estimated by Mr. Moore although Mr. Moore found them in disrepair. Mr. Patterson testified that he felt Mr. Moore’s damage estimates were “not builder-friendly.” Mr. Patterson was obviously roped into providing a brief and generic expert report. Notably, Mr. Patterson was NEVER TOLD that plaintiffs had submitted numerous punch-lists over the course of many months. Mr. Patterson was apparently lead to believe that this was a case of homeowner remorse. Mr. Patterson stated that the house was not acceptable and he would not have it as his own. Mr. Patterson is a neighbor to all parties and candidly admitted that the plaintiffs’ punch-list items were not unreasonable or wrong. This was consistent with Angel’s prior admissions, before trial as testified to by plaintiff and as he admitted on cross-exam, that the plaintiffs’ complaints were neither wrong or unreasonable. By the time Mr. Moore had to perform the work, it was a remodel job, not new home construction project.

Ronnie Hickman, defendant’s shower and tile sub, testified that he was directed by defendant Angel to build the shower improperly as Angel did not have enough money built into the contract to build it right [Regardless, general contractors are liable for the actions, inactions and fault of its subcontractors. Patterson, Pages 200, Day 2, Trial Transcript. Lafayette Ins. Co. v. C.E. Albert Const. Co., Inc., 731 So.2d 968 [La. App. 4 Cir. 19999].] His deposition was submitted as he was unable to attend the arbitration trial. Angel designed the shower and, as part of the contract, built the shower through his sub, for whom he admits [and the law commands] he is liable for. Hickman testified that he and Angel argued about the matter but ultimately Angel signed his paycheck so he complied as directed, to his chagrin. Hickman agreed, during punch-out, to try and help plaintiffs find the source of the serious water leak and cure it. Despite his efforts, it was not fixed and Angel refused to spend monies to cure this defect. [Mr. Patterson testified: Szwak: Okay. Did Ronnie Hickman tell you that when he subsequently came back over here and was going to attempt to make repairs, that he did so, but at some point he didn't have any money to fix the shower and build it correctly, and that Mr. Angel would not do it? Patterson: That sounds familiar.” Page 187, Day 2, Trial Transcript.] Hickman walked away from his efforts after Angel would not assist. Hickman identified the damages sustained by the Gilberts in the shower walls and confirmed that the problems with the shower were never cured. You should note that Hickman confirmed that the only way to repair the defective shower was to do exactly what Mr. Moore did and invoiced the plaintiffs for. Hickman estimated 80 man-hours plus materials. He confirmed that plaintiffs would need to be packed out of that area of the house to do this work. Hickman’s testimony was really critical to exposing Angel’s refusal to complete the home and repair the home as he refused to expend any of the monies he had drawn to make real efforts. Hickman testified about other Oak Alley homeowners who could not get Angel to complete their punch-lists and had water intrusion problems, both in shower areas [not Hickman projects] and around doors/windows. Hickman testified that Angel claimed he would not complete the home because plaintiffs refused to release the last $10,000 under the contract to Angel despite the incomplete structure and multiple defects. You may recall that the escrowed $10,000 was retained under an agreement between the parties resulting at closing. Angel’s piddly $10,000 claim is offset by enormous damages he caused in not completing the home and not repairing numerous defects. [Angel’s claim to the $10,000 balance is governed by the NHWA. Robert Angel Builder, Inc. v. Gilbert, 962 So.2d 1162 [La. App. 2 Cir. 8/15/07].]

Angel defended this action, in large part, on the notion that plaintiffs ultimately repaired the home and Angel thought he could have repaired it at no cost to plaintiffs. Plaintiff testified about the countless emails, punch-lists, phone calls, and ultimately strenuous and legal demands to abide by the contract, to no avail as Angel would not do so. During the awkward obstruction of efforts to resolve the dispute with Angel, Angel never would mediate, failed to show when he had agreed to, and never would agree to selection of a process to try the case. Angel sued plaintiffs while his sister-in-law played a “carrot game” with plaintiffs which was designed to try and lay a defense [Defendant has attempted to claim that a “settlement” was perfected. There was no agreement, no settlement and no deal. Defendant has tried to suggest that plaintiffs rejected an offer to buy the home at $650,000, yet his sister-in-law presented that purported offer and advised the plaintiffs to counter with an offer at $665,000, down from Mrs. Angel’s [who was defendant’s exclusive listing agent for his homes until very recent] alleged listing price at $685,000, at which time the alleged the alleged buyers walked away. Strange, indeed.] for her brother-in-law. Angel’s sister-in-law claimed she could sell the home for $685,000. She wanted plaintiffs to mediate the dispute and have Angel fix the major items and allow Larkin, another neighbor and family business partner with Misha Angel, [Mrs. Angel was designated to appear and testify by defendant but she failed to appear or testify. Failure to call her to testify leads to an adverse presumption that she would have testified adversely to Angel. All during the trial defendant and his attorney referenced statements by Mrs. Angel and that she would be coming to testify. She failed to appear at any time. “The “uncalled witness” rule has been defined as an adverse presumption that arises when “a party has the power to produce witnesses whose testimony would elucidate the transaction or occurrence” and fails to call such witnesses. 19 Frank L. Maraist, Louisiana Civil Law Treatise: Evidence and Proof, §§4.3 (1999). A party's failure to call such witnesses gives rise to the presumption that “the witnesses' testimony would be unfavorable to him.” Id. ... this rule applies when, as in this case, witnesses with peculiar knowledge of material facts pertinent to the case are not called. Stewart v. Great Atlantic and Pacific Tea Co., 657 So.2d 1327, 1330 (La. App. 4 Cir. 1995); Gurley v. Schwegmann Supermarkets, Inc., 617 So.2d 41, 44 (La. App. 4 Cir. 1993).” This is an adverse presumption, not a mere adverse inference by law. L.C.E. art. 302[3].] to serve as a “supervisor” over the dispute. [If Angel was truly willing to repairs the items in March, 2006, through negotiation, why didn’t he make repairs in the prior 27 months? Why did plaintiffs have to negotiate to get the repairs and completion work required under the contract?] Would you allow the defense expert [Mr. Patterson] to perform repairs during pending litigation and arbitration proceedings? Of course not. [Mr. Patterson testified that he was not even aware [and hence never agreed to] that he was offered up as part of the “carrot game” to perform any repair work on plaintiffs’ home. Pages 201-202, Day 2, Trial Transcript.] The scenario was hokey and destined to further drain plaintiffs resulting in no resolution. Angel argued that his sister-in-law produced an alleged contract to buy the home and convinced plaintiffs to counter the offer. According to her, the alleged prospective buyers never countered back although there was allegedly a mere $15,000 difference between the alleged offer and the Misha Angel-suggested counter. Now, who would refuse to negotiate a $15,000 difference on a $650,000 purchase? This carrot game was more than fishy.

Within one year and 30 days of the “warranty commencement date,” plaintiffs instituted this arbitration proceeding. NHWA, LRS 9:3143[7], 3146. While there are multiple warranty dates provided, the shortest warranty period is one year from the warranty commencement date and provides that the builder shall supply at least “one year following the warranty commencement date, the home will be free from any defect due to noncompliance with the building standards or due to other defects in materials or workmanship not regulated by building standards.” [“C. The provisions of Subsection A of this Section establish minimum required warranties and shall not be waived by the owner or reduced by the builder provided the home is a single or multiple family dwelling to be occupied by an owner as his home. LRS 9:3144[C].] NHWA, LRS 9:3144[A][1]. For plumbing, electrical, major structural defects, etc., the warranty is even longer. Based on plaintiffs’ filing date of this action, ALL DEFECTS are timely noticed and part of the claims herein. Again, all of the claims [and all of the defects] in this case are timely filed and noticed to defendant.

Precedential authority in Louisiana jurisprudence provides that, in a NHWA case, “implicit in every building contract is requirement that work shall be performed in good, workmanlike manner, free from defects in material and workmanship.” Allstate Enterprises, Inc. v. Brown, 907 So.2d 904 [La. App. 2 Cir. 2005]. The court, in the same case, noted that before a builder can assert rights to be paid in full, the home was to be in a condition fit for its intended purpose. Plainly, the master shower and leaking walls and doors made the home, in its entirety, unfit, as all parties agreed. Id. Angel has no right to seek the balance of monies under the contract. Id. Under the NHWA, plaintiffs have the burden of proof to prove existence and nature of the alleged defects, that the defects are due to faulty material and/or workmanship, and the cost of repairing the defects. Id.; Clark v. Whitener, 296 So.2d 393 [La. App. 2 Cir.1974], w.d., 299 So.2d 795 [La. 1974].

The NHWA provides for a private right of action. It states, in LRS 9:3149: “A. If a builder violates this Chapter by failing to perform as required by the warranties provided in this Chapter, any affected owner shall have a cause of action against the builder for actual damages [Courts have determined that, in NHWA cases, “actual damages” include mental anguish, inconvenience, aggravation, mental and emotional distress, and other typical non-pecuniary damages like those presented by the Gilberts. Prestridge v. Elliott, 847 So.2d 789 [La. App. 3 Cir. 2003]; McGee v. Yazoo & M.V.R. Co., 206 La. 121, 19 So.2d 21 [La. 1944]; Eubanks v. State, Dept. of Transp. and Dev., 620 So.2d 954, 958 [La. App. 3 Cir.], w.d., 629 So.2d 351, 353 [La.1993]; Austin Homes, Inc. v. Thibodeaux, 821 So.2d 10 [La. App. 3 Cir. 2002]; Melancon v. Sunshine Const., Inc., 712 So.2d 1011 [La. App. 1 Cir. 1998].], including attorney fees and court costs, arising out of the violation. The damages with respect to a single defect shall not exceed the reasonable cost of repair or replacement necessary to cure the defect, and damages with respect to all defects in the home shall not exceed the original purchase price of the home.” Arbitration of claims is permitted if the parties agree and subject to restrictions in LRS 9:4201, et. seq. LRS 9:3149[B]. [www.law.justia.com/louisiana/codes/123/123.html.] You will note that two paragraphs in Angel’s form building contract contradict as to the rights of recovery in the event of breach by Angel. There is no severability clause in the contract which raises an issue as to whether Angel could enforce the contract in any respects. [A clause that bars recovery of a party’s attorneys’ fees, though provided for by law, is substantively unconscionable and cannot be enforced. Post v. Procare Automotive Serv. Solutions, 2007 WestLaw 1290091 [Ohio App. 8 Dist. 5/3/07]. Severability clauses are required to preserve valid portions of a contract which contains invalid portions which must be struck as a matter of law. Sosa v. PARCO Oilfield Services, Ltd., Slip Copy, 2006 WestLaw 2821882 [U.S.D.C. E.D. Tex. 2006] [Hon. T. John Ward, Judge]. Louisiana courts refuse to reform an agreement containing a defective clause, such as an arbitration clause, when the contract lacks a severability clause. Vartech Systems, Inc. v. Hayden, 2006 WestLaw 3734368 [La. App. 1 Cir. 2006]; CBD Docusource, Inc. v. Franks, 934 So.2d 307 [La. App. 5 Cir. 2006]; Wied v. TRCM, LLC, 698 So.2d 685 [La. App. 2 Cir. 1997].] Nonetheless, the contract plainly does state, in the beginning, that the NHWA governs the contract. Angel’s contract attempts to derogate, which is illegal, to the extent he tries to limit plaintiffs’ remedies in one of the paragraphs. If the contract is invalid, in any part, then the NHWA exclusively controls regardless of whether some provision might supplement Angel’s rights yet not derogate from Louisiana law. Plaintiffs believe that the NHWA exclusively controls. Angel’s other effort to inject a “2-10" Warranty [Which was not provided to plaintiffs until much later. The purported warranty would not require items in the home to function within standard acceptable limits, for e.g., the shower was “complete” but leaked and caused damages. Also, as to incomplete work, how could one warrant an item that was never completed, e.g., shower, windows, doors, etc.?] standard into the terms of the contract is a plain derogation from the standard imposed by law under the NHWA. Angel cannot re-define “defect” to mean something different than deficiencies caused by faulty material and/or workmanship. Attempting to re-define it to basic building codes is not compliant. The 2-10 warranty plan does not match the language in the NHWA in terms of what is a “defect” and what is covered and excluded. The 2-10 warranty document was designed as an insurance product. National Home Ins. Co. v. King, 291 F.Supp.2d 518 [U.S.D.C. E.D. Ky. 2003] [McCarron Act prohibits arbitration in insurance claims. Warranty is an insurance product. This case involved CAS, HBWC and the 2-10 warranty plan, all at issue.]. Defendant cannot use the 2-10 warranty document, by reference and adoption in the building contract, to lower the standards provided by the NHWA law and re-define “defect” and the warranty provided by the NHWA. The most basic premise of contracts embodied in Louisiana Civil Code Article 7 is that persons “cannot by their contracts violate prohibitory law or derogate from law enacted for the protection of the public interest.” La.C.C. art. 7; Executone of Cent. Louisiana, Inc. v. Hospital Service Dist. No. 1 of Tangipahoa Parish, 798 So.2d 987 [La. App. 1 Cir. 2001]; Lindsey v. Colonial Lloyd's Ins. Co., 595 So.2d 606 [La. 1992]. Article 11 reinforces this codal authority [highest form of law in Louisiana]: “individuals cannot by their conventions derogate from the force of laws made for the preservation of public order or good morals.” La.Civil Code art. 11; Sanders v. Gore, 676 So.2d 866 [La. App. 3 Cir. 1996]. Further, defendant cannot adopt caps, limitations or other verbiage of the 2-10 warranty document which would, in any degree, derogate from the NHWA, which is positive law in Louisiana for the protection of the public interest.

Defendant criticized plaintiffs for not expending the funds quicker to repair the damages and thereby presumably mitigating their damages. Plaintiff’s testimony showed that plaintiffs were unable to gather funds any quicker to have the home repaired and completed. Further, based on the pendency of an arbitration, then Angel’s untimely lawsuit and the required counter-suit by the Gilberts which all occurred while the arbitration was pending, plaintiffs were unable to alter or destroy any evidence. Spoliation of evidence would have resulted in an adverse presumption from an evidentiary standpoint. Longwell v. Jefferson Parish Hosp. Service Dist. No. 1, 970 So.2d 1100 [La. App. 5 Cir. 2007]. The subject problems were the physical evidence. Discovery had yet to ensue, no arbitrator was named, and pre-merits motion practice was ongoing in the litigation. Plaintiffs were required to take “reasonable steps” to mitigate their damages. There is no evidence that plaintiffs failed to take reasonable steps. Once Szwak represented plaintiffs, he served written notice on defendant that the arbitration would proceed, defendant was required to inspect the evidence or lose the right by waiver based on notice and opportunity, and, thereafter, pursuant to the NHWA, LRS 9:3145, the Gilberts were entitled to start with the repair and completion work. [The Notice requirement was fulfilled. Even if Angel tried to complain of the 9:3145 Notice, he was required to file an Exception of Prematurity, which he did not. Plaintiffs’ notices, direct and through counsel, were more than adequate. Further, Angel had actual notice and claimed to make repair/completion efforts. Frank v. Tran, --- So.2d ----, 2008 WestLaw 239525 [La. App. 3 Cir. 2008]; Barrack v. J.F. Day & Co., Inc., 966 So.2d 1064 [La. App. 4 Cir. 2007] [defective, leaking window case].] Angel squandered his opportunity to make repairs and complete the home. The home was never substantially completed as major systems in the home were not functional and were defective. Mr. Moore’s expert opinion proved that each item on plaintiffs’ list was a defect and not built in conformity with applicable standards. Mr. Moore’s testimony was not refuted.

Plaintiffs are entitled to recover their costs in this action. Expert witness preparation, assistance and testimony are recoverable and should be taxed as costs. La. C.C.P. art. 1920. “Witnesses called to testify as expert witnesses shall be compensated for their services, with the amount to be determined by the court and taxed as costs to be paid by the party cast in judgment. La. R.S. 13:3666. An expert witness is entitled to reasonable compensation for his court appearance and for his preparatory work.” Allstate Enterprises, Inc. v. Brown, 907 So.2d 904, 917 [La. App. 2 Cir. 2005]. Mr. Moore’s testimony and assistance were critical to presentment of plaintiffs’ case. Hammock ex rel. Thompson v. Louisiana State Univ., 772 So.2d 306, 314 [La. App. 2 Cir. 2000]. Although it seems obvious, court reporter charges are taxable as court costs. Delaney v. Whitney Nat. Bank, 703 So.2d 709 [La. App. 4 Cir. 1997].

Plaintiffs’ damages are outlined in Exhibit 80, which includes Szwak’s attorney’s fees, [Back in 2003, Szwak’s hourly rate of $225.00 per hour was approved after extensive consideration by the United States District Court for the Middle District of Alabama. Thompson v. Equifax Credit Information Services, 2003 WestLaw 1579757 [U.S.D.C. M.D. Ala. 2003]. That is the rate Szwak adopted in this case and which he charges for his services in typical litigation. His rates in FCRA and related matters [specialty/expertise] has risen and been approved in unreported judgments and orders at $350.00 per hour, since Thompson. Testimonial rate for expert witness work has been approved at $500.00 per hour.] as well as fees paid by the Gilberts to prior counsels. It also includes the sum of actual damages in terms of costs to complete the home and to have Mr. Moore repair the various defects. It also includes Mr. Moore’s expert witness costs. The Gilberts included a spreadsheet of their damages and copies of their checks for payments as evidentiary proofs. The Gilberts also incurred CAS charges which are recoverable. Mr. Moore’s invoices to date have been submitted as part of Exhibit 80 and as shown in evidence. Szwak’s invoices are current as of the attachment to this submission. Prior invoices were submitted and paid and are reflected in Exhibit 80. The Gilberts incurred deposition expenses related to Hickman’s deposition and that invoice is in evidence . The deposition was introduced and is an important witness and should be taxed as a cost.

Mrs. Gilbert testified extensively about the time, expense, stress, marital strain, and other emotions and damages sustained due to this ordeal caused by Angel. Mr. Gilbert concurred without droning through duplicative testimony. Without belaboring what was clear at trial, the Gilberts sustained substantial non-pecuniary damages in this matter. The Gilberts described this home as a representation of the culmination of their efforts and successes over the years and the home’s design and appearance were obviously intended to gratify a non-pecuniary interest and desire of the plaintiffs. In sum, the home was not merely a means of shelter but was intended to be used to entertain and exhibit their successes and desired lifestyle. Instead, the home became a source of distress and anguish. Plaintiffs had to relocate while the home was repaired and completed by Mr. Moore. Costs of relocating during repairs are recoverable. [Mr. Patterson offered no opinion as to whether it was reasonable for the plaintiffs to be displaced while construction was ongoing by Mr. Moore. Page 188, Day 2, Trial Transcript.] Austin Homes, Inc. v. Thibodeaux, 821 So.2d 10 [La. App. 3 Cir. 2002]. Although the Legislature should reconsider based on cases like this one, at present, punitive damages are not available in this action however all “actual damages” are. Plaintiffs respectfully suggest that the extraordinary non-economic damages sustained in this case should be awarded and that award alone should exceed $75,000.00 The updated listing of special damages, attorneys’ fees, expert witness fees, court reporter transcription fees and other costs are itemized in the attached exhibits and spreadsheet exhibit, which is hereby offered globally into evidence in this proceeding.
David A. Szwak
Bodenheimer, Jones & Szwak, LLC
416 Travis Street, Suite 1404, Mid South Tower
Shreveport, Louisiana 71101
318-424-1400 / Fax 221-6555
President, Bossier Little League
Chairman, Consumer Protection Section, Louisiana State Bar Association

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