Hohensee v. Turner
216 So. 3d 883
La. Ct. App.2015Background
- Hohensee contracted Turner Design Collaborative (TDC) for home plans; Bergeron stamped Turner’s plans to secure a building permit.
- Plans were modified during construction without Bergeron’s consultation; changes included a second sub-floor and enclosing the crawl space.
- Construction revealed base elevation deficiencies; flaws attributed to design and stamping by Bergeron.
- Hohensee sued Turner, TDC, Bergeron (individually), MCC, Sexton, and an architectural LLC (RCB-Architects); later added Bergeron, Jr.—Architects, LLC and Sexton.
- Bergeron and RCB moved for partial summary judgment limited to construction-related liability; court granted in favor of Bergeron individually and RCB for construction-related issues.
- Bergeron separately moved to strike a deposition-related expert report (Bailey); trial court granted the strike.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Bailey report could be used against summary judgment | Bailey’s report was attached to opposition; deposition alone is unfair without report | Bailey report is unauthenticated hearsay; not competent summary judgment evidence | No; Bailey’s report excluded as unauthenticated hearsay evidence for summary judgment. |
| Whether summary judgment on construction-related issues was proper | Bergeron/RBA liable for construction defects under design/build arrangements | No design/build agreement; Bergeron didn’t participate in construction; only reviewed and stamped plans | Proper; construction-related liability, including personal liability, was not shown. |
| Whether Bergeron can be personally liable despite LLC protections | R.S. 12:1320(D) allows personal liability for breach of professional duty | No personal duty shown; stamping relied on Turner’s design under contract; conduct within legitimate scope | Affirmed; no genuine issue on personal liability under professional duty absent proof of breach. |
| Whether the LLC’s structure shields Bergeron from personal liability for professional duty | Ogea/Matherne support piercing veil for professional breaches | No breach of duty shown; Bergeron’s role was ancillary; no duty breached | Affirmed; Bergeron not personally liable. |
| Whether the trial court abused its discretion in excluding expert Bailey's report | Exclusion prejudiced ability to oppose summary judgment | Rationale for exclusion supported by evidentiary rules | No abuse of discretion; strike affirmed. |
Key Cases Cited
- Independent Fire Ins. Co. v. Sunbeam Corp., 755 So.2d 226 (La. 2d Cir. 2000) (expert affidavits may support opposition to summary judgment)
- Guzzardo v. Town of Greensburg, 563 So.2d 424 (La.App. 1 Cir. 1990) (expert reports not admissible absent attestation)
- Williams v. Memorial Medical Center, 870 So.2d 1044 (La.App. 4 Cir. 2004) (unverified documents attached to motions are not competent summary judgment evidence)
- Ogea v. Merritt, 130 So.3d 888 (La. 2013) (piercing the LLC veil for breach of professional duty; duty is legal, breach is factual)
- Matherne v. Barnum, 94 So.3d 782 (La.App. 1 Cir. 2012) (LLC protections generally apply but exceptions for professional duties)
- Charming Charlie, Inc. v. Perkins Rowe Associates, L.L.C., 97 So.3d 595 (La.App. 1 Cir. 2012) (limitations on liability of LLC members)