96 0863 La.App. 1 Cir. 2/14/97, Osborne v. Ladner
| Decision Date | 14 February 1997 |
| Citation | 691 So.2d 1245 |
| Parties | 96 0863 La.App. 1 Cir |
| Court | Court of Appeal of Louisiana — District of US |
Arthur R. Cooper, Baton Rouge, for Plaintiffs/Appellees Gerard and Edna Osborne.
Ann M. Halphen, Baton Rouge, for Defendant/Appellant Sandy Pritchard.
David C. Forrester, Baton Rouge, for Defendant/Appellant Cathryn Fricke Ladner.
Walter W. Christy, Thomas P. Hubert, New Orleans, for Defendant Allied-Bruce Terminix Companies, Inc.
Before CARTER, LeBLANC and PARRO, JJ.
[96 0863 La.App. 1 Cir. 2] CARTER, Judge.
This is an appeal from a trial court judgment, awarding the purchasers of a home a reduction in price and damages against the seller and finding the real estate agent liable in solido with the seller for a portion of the damages.
On December 14, 1990, petitioners, Gerard and Edna Osborne, purchased a home located at 14244 Harwood Avenue in Woodland Ridge Subdivision, Baton Rouge, Louisiana, from defendant, Cathryn Fricke Ladner (Ladner), for $178,500.00. Within a few weeks of the sale, the Osbornes became aware of various leaks and termite infestation in the home. Repair estimates showed the cost to correct the damage was approximately $26,000.00.
On August 11, 1991, the Osbornes filed a suit for a reduction in the purchase price and, alternatively, for rescission of the sale and for damages for breach of contract. Named in the petition were Ladner and Allied-Bruce Terminix Companies, Inc. (Terminix). 1 The Osbornes claimed that Ladner knew of the allegedly defective condition of the home, failed to declare it to them prior to the sale, and was liable for damages as a result of her bad faith. The Osbornes alleged that Terminix breached its obligations under the termite contract and, alternatively, that Terminix had negligently inspected the premises prior to the sale.
Ladner filed an answer to the Osbornes' petition, generally denying the allegations. In her answer, Ladner contended that the alleged defects in the premises were apparent and should have been discovered by simple inspection. Ladner further alleged that the Osbornes failed to mitigate their damages by their delay in repairing the damage and by refusing to allow her to correct the damage. Ladner also filed a cross-claim against Terminix for contribution and indemnity. Ladner alleged that, at all pertinent times, Terminix held a termite treatment contract on the property and had continued to certify that the property was free of active termite infestation.
[96 0863 La.App. 1 Cir. 3] Terminix answered the claims of the Osbornes and Ladner. In its answer to the claims by the Osbornes, Terminix generally denied any liability. 2 In its answer to Ladner's cross-claim, Terminix alleged that the active termite damage was caused by an aerial infestation of subterranean termites for which it is not responsible.
On October 20, 1993, the Osbornes amended their petition, naming as a defendant Sandy Pritchard, the listing agent in the sale from Ladner to them. The Osbornes alleged that Pritchard knew of the defects in the Ladner home and misrepresented those defects to them for which she should be held solidarily liable with Ladner.
Pritchard answered the original and amended petitions, generally denying the allegations. Pritchard also filed a cross-claim against Terminix and Ladner, alleging that Terminix failed to properly inspect, detect, and exterminate and that Ladner failed to disclose the defects.
After a jury trial, the jury returned the following jury verdict interrogatories:
1. Do you find the residence at 14244 Harwood Avenue, Baton Rouge, Louisiana
contained a hidden defect that was not discoverable by simple inspection by
the Osbornes
x YES NO
----- -----
2. Do you find that Sandy Pritchard negligently and knowingly misrepresented
the condition of the house to the Osbornes
x YES NO
----- -----
(If you answer NO to both questions, stop now and return to the courtroom.)
3. Do you find Terminix breached its contract with the Osbornes or the Ladners
and that breach caused the Osbornes damages
YES x NO
----- -----
4. Do you find that Terminix negligently failed to perform its duties in
preparing the wood-destroying [insect] report and the negligence caused the
Osbornes damage
YES x NO
----- -----
5. What amount of damages do you award to the Osbornes as a result of the
defects?
$36,138.94
-------------------
6. If you answer "YES" to Question 3 or 4, do you find that the termite damage
contributed to the defects in the residence at 14244 Harwood?
YES NO
----- -----
7. What amount of damages awarded in response to Question No. 5, do you find
are as a result of termite damage?
$9,165.198.
-------------------
8. What amount of damages awarded in response to Question No. 5 do you find are
a result of failure to disclose a material defect by Sandy Pritchard?
$2,677.509.
-------------------
9. Do you find that Cathy Ladner was a bad faith seller who concealed the
defects in the house?
x YES NO
----- -----
10. If your answer to No. 9 is YES, what amount, if any, do you award the
Osbornes for emotional distress, mental pain and suffering?
$5,000.00
-------------------
On October 11, 1995, the trial court rendered judgment in favor of the Osbornes and against Ladner for $41,138.94, together with legal interest from date of judicial demand and costs, and $7,500.00 in attorney's fees, with legal interest from date of judgment. 3 The trial court judgment also cast Pritchard liable in solido with Ladner for $20,569.47, together with legal interest from date of judicial demand and costs. 4 The judgment also stated that Ladner and Pritchard were entitled to contribution and indemnity rights as provided by law. Judgment was rendered in favor of Terminix, dismissing all claims brought against it. 5
From this adverse judgment, Pritchard suspensively appealed, and Ladner devolutively appealed, assigning various errors. On appeal, Ladner contends that the [96 0863 La.App. 1 Cir. 5] trial court erred in the jury instructions, in an evidentiary ruling, in the damage award for various repair items, in finding that she was a bad faith seller, and in finding that Terminix was not liable. 6 In her assignments of error, Pritchard contends that the jury erred in finding her liable for negligent misrepresentation and awarding the Osbornes $2,677.50 in damages as a result of such negligent misrepresentation. 7 Pritchard also contends that the jury erred in holding her liable in solido for damages of $20,569.47. The Osbornes answered the appeals, requesting additional attorney's fees on appeal.
(Ladner's Assignment of Error No. 4)
Ladner contends that the trial court erred in refusing to allow the introduction of evidence and the cross-examination of Mr. Osborne relative to the issue of mitigation of damages. Ladner contends that the jury should have been permitted to receive evidence relative to her offers to repair the property in 1991 and Mr. Osborne's financial ability to repair the home and mitigate his damages. Ladner reasons that this evidence was relevant to the mitigation of damages issue.
Generally, parties should be given the opportunity to cross-examine witnesses on any relevant matter. Thibaut v. Thibaut, 607 So.2d 587, 600 (La.App. 1st Cir.1992), writs denied, 612 So.2d 37, 38, & 101 (La.1993). The determination of the relevancy of tendered evidence and, therefore, the scope of cross-examination is within the discretion of the trial judge, whose rulings will not be disturbed in the absence of abuse of discretion. State v. Lard, 568 So.2d 629, 632 (La.App. 2nd Cir.1990). However, it is well settled that the party who contends his evidence was improperly excluded is required to make a proffer of the evidence, and if he fails to do so, he cannot contend such exclusion was erroneous. Hurts v. Woodis, 95-2166, p. 12 (La.App. 1st Cir. 6/28/96), 676 So.2d 1166; 676 So.2d 1166, 1175; Williams v. Exxon Corporation, 541 So.2d 910, 912-913 (La.App. 1st Cir.), writ denied, 542 So.2d 1379 (La.1989).
[96 0863 La.App. 1 Cir. 6] In the instant case, Ladner failed to proffer any of the evidence she alleges was improperly excluded. As a result, she now cannot complain that such exclusion was error.
(Ladner's Assignments of Error Nos. 1, 2, 4, 5, 7, and 9)
Ladner contends that the trial court erred in failing to conduct a charge conference prior to giving instructions to the jury and in failing to allow objections to the jury instructions prior to the jury's retirement. Ladner further contends that the jury instructions given by the trial court were erroneous in several respects. First, the instructions given were on damages recoverable in an action for rescission rather than for damages recoverable in an action for reduction. As a result, the jury erroneously awarded damages for various repairs, such as remodeling, apparent defects, and new shingles. Second, the trial court failed to provide any instructions relative to various relevant issues, including instructions on mitigation of damages and attempts to repair, the distinction between good faith and bad faith sellers and their respective liabilities for damages, the existence of any duty owed by Terminix to the Osbornes, and solidary liability between Ladner and Pritchard.
LSA-C.C.P. art. 1793 outlines the procedure by which objections to...
To continue reading
Request your trial
-
Cleveland v. Dyn-A-Mite Pest Control, Inc.
...companies in communicating facts in termite inspection reports. See Ex parte Hill, 730 So.2d 214, 217 (Ala.1998); Osborne v. Ladner, 691 So.2d 1245, 1255 (La.Ct.App.1997); Williams v. Jackson Co., 359 So.2d 798, 801 (Ala.Civ.App.1978); Johnson v. Wall, 38 N.C.App. 406, 248 S.E.2d 571, 575 (......
-
Linnear v. Center. Energy Entex/rel. Ener.
...right to complain on appeal of the trial court's refusal to give the proposed jury charge(s) is forfeited. Osborne v. Ladner, 96-0863 (La.App. 1 Cir. 2/14/97), 691 So.2d 1245, 1252; Martin v. Francis, 600 So.2d 1382, 1387 (La.App. 1 Cir.1992). See also Sanders v. Bain, 31,362 (La.App. 2 Cir......
-
Abs Servs., Inc. v. James Constr. Grp.
...arts. 2323 and 2324, which abolished solidary liability for non-intentional joint tortfeasors.11 Osborne v. Ladner, 96-0863 (La. App. 1st Cir. 2/14/97), 691 So.2d 1245, 1256-57 (The court found solidary liability for damages between seller of home who was liable for damages as a bad faith s......
-
98-0031 La.App. 1 Cir. 12/28/98, Lee v. Lee
...and if he fails to do so, he cannot contend such exclusion was erroneous. Osborne v. Ladner, 96-0863, p. 5 (La.App. 1st Cir.2/14/97); 691 So.2d 1245, 1251; Hurts v. Woodis, 95-2166, p. 12 (La.App. 1st Cir.6/28/96); 676 So.2d 1166, 1175. Because Mr. Lee failed to make a proffer of evidence p......