Fie, LLC v. New Jax Condo Ass'n, Inc.
241 So. 3d 372
La. Ct. App.2018Background
- FIE, LLC (later transferred to Iberia Tigers, LLC) owned Unit 5‑C in the New Jax condominium; beginning in 2008–2009 the unit suffered persistent roof leaks, interior damage and mold. Repairs were attempted intermittently and the unit was unusable until interior repairs completed in Sept. 2015 (≈75 months after initial complaint).
- Plaintiffs sued New Jax Condominium Association (New Jax) in March 2012 for negligence and breach of duty to maintain common elements; Lafayette Insurance Company (insurer) was later joined and plaintiffs asserted a bad‑faith claim under La. R.S. 22:1892 and later sought attorney’s fees under La. R.S. 9:1121.104.
- At a five‑day jury trial the jury found New Jax breached contract and was negligent; it awarded $1,185,700 for loss of use to plaintiffs and found plaintiffs owed New Jax $63,563.15 in unpaid assessments. The trial court entered judgment in solido for the plaintiff award and denied New Jax’s new trial/remittitur motion.
- Pretrial motions: court granted plaintiffs’ partial summary judgment that the LLC plaintiffs could recover loss‑of‑use damages measured by rental value; trial court excluded plaintiffs’ attempted bad‑faith claim under La. R.S. 22:1892(A)(4) via motion in limine after earlier denial of a motion to amend pleadings to add that claim.
- Plaintiffs later moved to tax costs; the trial court granted in part and assessed $49,862.92 (court costs and specified expert fees) against defendants. Defendants appealed; appeals were consolidated.
- The appellate court affirmed: (1) plaintiffs’ entitlement to loss‑of‑use damages; (2) denial of directed verdict/new trial as to tort liability; (3) finding of continuing tort (so prescription did not bar recovery); (4) exclusion of the late‑pleaded 22:1892(A)(4) bad‑faith claim; and (5) the partial award of costs.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Right of corporate plaintiffs to recover loss‑of‑use damages | LLCs own property and may recover compensatory loss‑of‑use measured by rental value | Corporations/Juridical persons cannot recover non‑pecuniary damages like loss of use absent economic loss | Affirmed: loss‑of‑use is compensatory/special damage measured by rental value; juridical owners may recover it (Chriss distinguishes from mental anguish) |
| Nature of claim — tort or contract; submission to jury | Plaintiffs alleged active negligence and breach; may pursue tort remedy for active breach causing successive damages | Defendants argued the claim was exclusively contractual and tort damages were improper | Affirmed: evidence supported active breach (tort) and the jury could decide negligence; directed verdict/new trial denial not an abuse of discretion |
| Prescription — whether continuing tort applies | Damage was caused by continuous negligent acts/inaction from 2009 until 2015; prescription did not run until wrongful conduct ceased | Defendants said leaks were discrete events and older claims (>1 year) prescribed | Affirmed: continuing tort doctrine applied; cumulative, ongoing acts gave rise to successive damages and tolled prescription until repairs abated |
| Exclusion of plaintiffs’ bad‑faith claim under La. R.S. 22:1892(A)(4) | Plaintiffs contended pleadings (3rd supplemental petition) gave adequate notice and trial exclusion was erroneous; pleadings should be liberally construed | Lafayette argued plaintiffs failed to timely plead a 22:1892(A)(4) claim and trial court previously denied leave to amend to add that specific subsection | Affirmed: trial court did not abuse discretion; plaintiffs failed to plead the §1892(A)(4) elements specifically and the court properly excluded evidence of that late claim |
Key Cases Cited
- Chriss v. Manchester Ins. & Indem. Co., 308 So.2d 803 (La. App. 4th Cir. 1975) (property owners may recover damages for loss of use measured by rental value; distinguishes loss of use from mental anguish)
- Eagle Pipe & Supply, Inc. v. Amerada Hess Corp., 79 So.3d 246 (La. 2011) (ownership rights include possession, use, enjoyment and the right to pursue remedies for their disturbance)
- McGee v. A C & S, Inc., 933 So.2d 770 (La. 2006) (distinguishes special vs. general damages; loss of use can be special where market measure exists)
- Borden, Inc. v. Howard Trucking Co., Inc., 454 So.2d 1081 (La. 1983) (acts breaching contract can also constitute legal fault giving rise to tort damages)
- Crump v. Sabine River Authority, 737 So.2d 720 (La. 1999) (continuing tort doctrine — prescription runs when continuous wrongful conduct ceases)
- Hogg v. Chevron USA, Inc., 45 So.3d 991 (La. 2010) (burden rules on prescription and when plaintiff must show interruption/suspension)