Habitat, Inc. v. Commons Condominiums, LLC, 2011–CA–1384.

• Court: Court of Appeal of Louisiana (US)
• Citation: 97 So.3d 1126
• Docket Number: No. 2011–CA–1384.,2011–CA–1384.
• Parties: The HABITAT, INC. v. The COMMONS CONDOMINIUMS, LLC, the Commons Condominium Association, Inc., and Time Share Construction, LLC.
• Decision Date: 11 July 2012

97 So.3d 1126

The HABITAT, INC.
v.
The COMMONS CONDOMINIUMS, LLC, the Commons Condominium Association, Inc., and Time Share Construction, LLC.

No. 2011–CA–1384.

Court of Appeal of Louisiana,
Fourth Circuit.

July 11, 2012.

[97 So.3d 1128]

John A. Cangelosi, King Krebs & Jurgens, P.L.L.C., New Orleans, LA, for Plaintiff/Appellee.

Richard A. Weigand, Elizabeth A. Weigand, Weigand & Levenson, New Orleans, LA, for Defendant/Appellant.

(Court composed of Chief Judge CHARLES R. JONES, Judge DANIEL L. DYSART, and Judge JOY COSSICH LOBRANO).

CHARLES R. JONES, Chief Judge.

[4 Cir. 1]The Appellants, The Commons Condominiums, LLC, The Commons Condominium Association, Inc., and Time Share Construction, LLC, seek review of the judgment of the district court denying their motion for new trial. ¹ Finding that the district court did not err in denying the motion for new trial, we affirm the judgment of the district court. Furthermore, the peremptory exceptions of no right or cause of action, or in the alternative, peremptory exception of nonjoinder of indispensable parties of the Appellants, are denied. Lastly, the motion to dismiss the exceptions of the Appellee, The Habitat, Inc., is denied as moot.²

The Commons Condominiums, LLC, (“the CC”) owned a condominium building in Orleans Parish, wherein The Habitat, Inc. (“The Habitat”), owned condominium unit D. Condominium owners within said building were members of The Commons Condominium Association, Inc. (“the Association”). The instant matter arises out of renovations that occurred within the condominium building [4 Cir. 2]allegedly at the direction of the CC and its contractor, Time Share Construction, LLC. (“Time Share”).

In April 2007, The Habitat filed its petition for damages against the Appellants asserting causes of action for damages to unit D, and for damages to The Habitat's interest in the common elements and limited common elements within the condominium building. The Habitat pleaded the following facts:

1.) The CC was a developer that purchased the condominium building from The Habitat in October 2003 by Act of Credit Sale and Mortgage;

2.) After a condominium regime was established, the CC began to sell condominium units within the building;

3.) The CC agreed to convey to The Habitat a third floor unit, unit D, within the Act of Credit Sale. The CC subsequently entered into a building contract with Time Share;

4.) The CC and Time Share are related entities with similar or identical owners;

[97 So.3d 1129]

5.) Time Share was to demolish, renovate and construct a portion of the interior and exterior of the condominium building, and construct a penthouse, a pool and a terrace on the roof building for use by unit E of the condominium building; ³

6.) In February 2006, The Habitat took possession of unit D and began renovating the unit. The renovations were completed in May 2006, at which time The Habitat began occupying the unit;

7.) After occupying unit D, The Habitat discovered that certain work completed by the CC and/or Time Share was defective, incomplete or completed in a shoddy fashion. Said defects caused damages to unit D, the common elements and limited common elements of the condominium building;

[4 Cir. 3]8.) The work performed by the CC and/or Time Share caused and continues to cause damages to unit D, and to the common elements and limited common elements of the condominium building; and

9.) The Habitat further alleged that pursuant to the terms of the Public Offering Statement filed by the CC, the Board of Directors of the Association is still controlled exclusively by the CC because the CC still owns a unit in the condominium building.

In its suit against the Appellants, The Habitat raised claims of breach of fiduciary duty and breach of warranties to deliver unit D, the common elements and the limited common elements of the building free of vices and/or defects. The Habitat alleged that the CC is liable to The Habitat and the Association for damages to the units in the building, the limited common elements and to the common elements as a result of the work completed by the CC in unit D and on the roof. The Habitat further alleged that the CC is in default of its credit sale and mortgage agreement with The Habitat. Lastly, The Habitat averred that the Appellants were solidarily liable to The Habitat for damages to unit D and to the limited common elements and the common elements of the building.

Service of the petition and citation on the Appellants was made on Thomas B. Bowes, the registered agent for service of process for each individual entity, in July 2007. The Appellants did not file an answer to the petition; thus, The Habitat obtained a preliminary default judgment against the Appellants in February 2008, which was later confirmed in late March 2008.⁴ Pursuant to the March 2008 judgment, The Habitat was awarded $517,576.52 in damages. The Appellants were [4 Cir. 4]neither served with notice of the preliminary default, nor with the confirmation of the default judgment. Subsequently, The Habitat filed an ex parte motion to amend judgment, which was granted by the district court. The judgment was amended to correct the spelling of the names of the Appellants in the caption and body of the judgment.

On May 3, 2011, counsel for the Appellants filed a motion to enroll and a request for notice of trial and judgments. On the same date, The Habitat filed two ex parte motions: a motion to supplement the record, and a motion for second amended judgment. The district court, on May 4, 2011, granted the motion to enroll of the

[97 So.3d 1130]

Appellants, and granted the ex parte motion to supplement the record of The Habitat. The record was supplemented with a certificate required by La. C.C.P. art. 1702.1⁵ for default judgments, and an affidavit of correctness that was executed by Gerald P. Webre, the director and president of The Habitat. In approximately mid-May of 2011, the district court granted the ex parte motion for second amended judgment of The Habitat. Thus, the confirmed default judgment [4 Cir. 5]was amended to include the date of the preliminary default “February 11, 2008”, and to remove wording that indicated that the default judgment confirmation hearing was conducted in open court.⁶

The Appellants also filed a motion for an expedited hearings [sic], and for expedited issuance of a notice of signing of judgment. While the district court denied the motion for expedited hearings, the court did order that the notices of signing of judgment for the confirmed default judgment, the amended judgment, and the second amended judgment be issued.

The Appellants also filed a motion to strike pleadings, and a motion to vacate orders granting the ex parte motions to supplement the record and motion for second amended judgment of the district court. The motions were deemed moot by the district court. Thereafter, the Appellants filed a motion for new trial, which the district court denied. The Appellants timely filed the instant appeal and raise five (5) assignments of error:

1. Whether the district court erred in rendering a judgment confirming the preliminary default on March 27, 2008, when The Habitat failed to prove a prima facie case;

2. Whether the district court erred in granting The Habitat's Motion to Supplement the Record allowing The Habitat to cure a fatal defect by entering the certificate required by La. C.C.P. art. 1702.1, which was not filed when The Habitat sought to confirm the preliminary default;

3. Whether the district court erred in granting The Habitat's Motion for Second Amended Judgment;

[4 Cir. 6]4. Whether the district court erred in denying the Appellants' Motion for New Trial; and

5. Whether The Habitat properly filed a derivative suit for damages to the

[97 So.3d 1131]

common and limited common elements of the condominium building.

We note that in the motion for appeal of the Appellants, they state that they seek review of the judgment of the district court denying their motion for new trial; however, the assignments of error raised by the Appellants also indicate that they seek to challenge the original judgment of the district court which confirmed the default judgment. The denial of a motion for new trial is generally a non-appealable interlocutory judgment. Nevertheless, appellate courts may consider interlocutory judgments as part of an unrestricted appeal from a final judgment. See Miller v. Chicago Ins. Co., 320 So.2d 134, 136 (La.1975). In the matter sub judice, it is evident from the assignments of error raised by the Appellants that they also intended to appeal the judgment of the district court which confirmed the default judgment and its amendments. The Appellants neglected to declare that they also sought to appeal the original judgment of the district court which confirmed the default judgment in their motion for appeal. We will not dismiss this appeal for this technicality because the Louisiana Supreme Court has held that appeals are favored in the law and must be maintained wherever possible. See Emmons v. Agricultural Insurance Company, 245 La. 411, 158 So.2d 594 (La.1963).

In the first assignment of error, the Appellants argue that the district court erred in rendering a judgment confirming the preliminary default because The Habitat failed to prove a prima facie case. The Appellants argue that there were no [4 Cir. 7]contracts attached to The Habitat's motion to confirm default judgment showing that the CC or Time Share contracted to perform any work for The Habitat on unit D, or on the common elements. The Appellants further argue that the contractual relationship between the Habitat and the Appellants was not established by sworn testimony. The Appellants lastly argue that the document submitted by Marc J. Dahlman, the construction expert of The Habitat, is not the sworn testimony of an expert.

The Habitat argues that the record illustrates that it introduced evidence sufficient to sustain its burden...