Veazey v. Elmwood Plantation Associates, Ltd.

• Decision Date: 13 October 1993
• Docket Number: No. 93-CA-284,93-CA-284
• Citation: 625 So.2d 675
• Parties: Christi VEAZEY v. ELMWOOD PLANTATION ASSOCIATES, LTD. and Southmark Management Corporation.
• Court: Court of Appeal of Louisiana — District of US

Page 675

625 So.2d 675

Christi VEAZEY v. ELMWOOD PLANTATION ASSOCIATES, LTD. and Southmark Management Corporation.

No. 93-CA-284.

Court of Appeal of Louisiana Fifth Circuit.

Oct. 13, 1993.

Charles R. Capdeville, Wanda T. Anderson, Law Offices of Charles R. Capdeville, Metairie, for defendant-appellant.

Jacob J. Amato, Jr., Lisa A. Dunn, Amato & Creely, Gretna, for plaintiff-appellee.

Before GAUDIN, GRISBAUM and DUFRESNE, JJ.

GRISBAUM, Judge.

This appeal arises out of a trial by jury involving the liability of an apartment complex management firm for the rape of one of its tenant. We affirm.

ISSUES

We are called upon to resolve numerous specific questions:

(1) Whether the trial court erred by allowing into evidence testimony concerning verbal promises of security that were not incorporated into the subsequent lease;

(2) Whether this Court's December 20, 1991 writ decision addressed the parol evidence rule, ergo establishing the law of the case;

(3) Whether the trial court erred in not applying La.C.C. art. 2716 whereby the lessee and not the lessor would have been solely liable for the locks on the windows on the leased premises;

(4) Whether the trial court committed reversible error in failing to charge the jury that fault could be assessed between an unknown intentional tortfeasor (the rapist) and a negligent tortfeasor (the apartment complex);

(5) Whether the trial court erred in amending the jury's finding that the defendant was 60 percent at fault and the plaintiff was 40 percent at fault when there was a discrepancy between the jury's answers to the interrogatories and the general verdict; and

(6) Whether the trial court, upon granting the judgment notwithstanding the verdict (JNOV), erred in finding that the management of the apartment, Southmark Management Corporation (Southmark), was 100 percent at fault for the rape of the plaintiff.

BASIC RECORD FACTS AND PROCEDURAL HISTORY

On June 28, 1988, plaintiff, Christi Veazey, entered into a lease with Tonti Management Corporation (Tonti) for an apartment located in the Elmwood Plantation Apartments (Elmwood Apartment) complex. The Elmwood Apartment complex was sold within two weeks after plaintiff rented her apartment and defendant, Southmark, assumed the management duties.

At approximately 1:45 a.m. on October 3, 1988, plaintiff was raped by a man who entered her second-floor apartment through her bedroom window. Plaintiff filed suit on November 16, 1988, alleging that defendant, Southmark, was negligent in failing to provide security, failing to maintain the complex in a manner to discourage criminal activity, failing to provide adequate window locks and misrepresenting the amount of security and prior criminal occurrences.

Southmark made a third-party demand against the previous management company, Tonti. Tonti filed a motion for summary judgment, which was denied by the trial court. Tonti subsequently sought writs, which were granted. Hence, Tonti was dismissed.

In April 1992, Southmark filed for summary judgment, which was denied by the trial court. Southmark also filed a motion in limine seeking to prevent testimony, concerning oral promises allegedly made prior to the written lease, from being presented at trial. The trial court deferred ruling on the motion in limine to the merits. From both these rulings, Southmark sought writs, which were denied.

A four-day trial commenced on May 4, 1992, before a 12-person jury, and resulted in an inconsistent verdict. After noticing the discrepancy, Ms. Veazey filed a motion for clarification and, in the alternative, a JNOV or a new trial. The trial court granted the motion for clarification and the JNOV. It then found defendant, Southmark, 100 percent at fault.

ANALYSIS--ISSUE ONE

Initially, we are called upon to determine whether the trial court erred by allowing into evidence testimony concerning verbal promises of security that were not incorporated into the subsequent lease. The record reflects that Christi Veazey and her mother testified that the alleged promises of security were made prior to the signing of the written lease.

The general rule concerning parol evidence is set forth in La.C.C. art. 1848, which provides:

Testimonial or other evidence may not be admitted to negate or vary the contents of an authentic act or an act under private signature. Nevertheless, in the interest of justice, that evidence may be admitted to prove such circumstances as a vice of consent, or a simulation, or to prove that the written act was modified by a subsequent and valid oral agreement.

The pertinent lease language reads, to-wit:

Police protection is the function of the Jefferson Parish Sheriff's office. Tonti Management Corporation cannot be responsible for you or the contents of your apartment or automobile. Any guards seen on Tonti property have been employed to patrol our rental offices and physical plant only. They are not for your personal protection.

Our statutory law provides an exception to the parol evidence rule in that parol evidence is admissible to prove a vice of consent. See La.C.C. art. 1848. Fraud is listed as a vice of consent in La.C.C. art. 1948 and is defined in La.C.C. art. 1953 as a misrepresentation. Accordingly, where misrepresentation is alleged, parol evidence, commonsensibly, is admissible to establish whether the allegation is true. First Financial Bank, FSB v. Austin, 514 So.2d 281 (La.App. 5th Cir.1987), writ denied, 515 So.2d 1112 (La.1987). Since plaintiff's petition specifically alleged that Southmark "misrepresented the amount of security," we find the plaintiff and her mother's testimony concerning the oral promises of security outside the written lease were properly admitted.

ANALYSIS--ISSUE TWO

Next, we are called upon to determine whether this Court's December 20, 1991 writ decision addressed the parol evidence rule, ergo establishing the law of the case.

"Law of the case" is a discretionary policy whereby an appellate court will not reconsider its prior rulings on an issue in a subsequent appeal in the same case. Ficarra v. Mount Vernon Fire Ins. Co., 527 So.2d 493 (La.App. 5th Cir.1988). This Court has previously held that the "law of the case" doctrine applies to previous decisions on writ applications as full appellate proceedings. Mihalopoulos v. Westwind Africa Line, Ltd., 511 So.2d 771 (La.App. 5th Cir.1987).

The appellant argues that when this Court granted Tonti's summary judgment in the writ decision rendered on December 20, 1991, it found that the parol evidence rule applied, and submits the ruling became the "law of the case." Therefore, appellant states that the parol evidence rule should have been applied at trial which would have prevented any testimony about oral promises of security allegedly made prior to the written lease.

We see that when this Court, on December 20, 1991 granted the writ regarding Tonti's motion for summary judgment, it simply stated:

After careful review of this application, we conclude there is no issue of material fact and the relator is entitled to judgment as a matter of law. Ergo, the trial court erred in not granting summary judgment on behalf of the relator, who we hereby dismiss with prejudice from these proceedings. See La.C.C.P. art. 968; Kiefer v. Whittaker, 468 So.2d 587 (La.App. 4th Cir.1985).

There was no decision regarding the parol evidence rule; therefore, there was no "law of the case" to that effect. Ergo, the trial court committed no error in allowing parol evidence.

ANALYSIS--ISSUE THREE

We now must determine whether the trial court erred in not applying La.C.C. art. 2716 whereby the lessee and not the lessor would have been solely liable for the locks on the windows on the leased premises.

La.C.C. art. 2716 is entitled "Repairs at expense of lessee" and, in pertinent part, states: "The repairs, which must be made at the expense of tenant, are those which, during the lease, it becomes necessary to make: To windows, shutters, partitions, shop windows, locks and hinges, and everything of that kind, according to the custom of the place."

In the ordinary use of the word, repair means "to restore to sound condition after damage or injury." American Heritage Dictionary. Plaintiff's petition alleges that Southmark was negligent in providing inadequate locks on the windows in the apartment. Moreover, nowhere is it alleged that the locks were broken and/or in need of repair. In fact, the record shows that, when Christi Veazey testified about the window the rapist entered, she emphatically stated that the lock was in working order, to her knowledge.

Finally, the questions of whether a landlord owes a duty to provide adequate locks and whether the locks in question are adequate necessarily require a duty/risk analysis. Accordingly, we cannot say that the trial court erred in not applying La.C.C. art. 2716.

ANALYSIS--ISSUE FOUR

We now turn to establish whether the trial court committed reversible error in failing to charge the jury that fault could be assessed between an unknown intentional tortfeasor (the rapist) and a negligent tortfeasor (the apartment complex).

For fault assessment, we are guided by our statutory law in La.C.C.P. art. 1812, which allows a jury to apportion fault not only to the parties of an action but also to other persons, whether party or not. La.C.C.P. art. 1812, in pertinent part, provides:

C. In cases to recover damages for injury, death, or loss, the court may submit to the jury special written questions inquiring as to:

(2) If appropriate, whether another person, whether party or not, other than the person suffering injury, death, or loss, was at fault, and, if so:

(a) Whether such fault was a legal cause of the damages, and, if so:

(b) The degree of such fault, expressed in percentage.

Additionally, our jurisprudence provides that the adequacy of jury instructions must be determined in light of the jury instructions as a whole. Moreover, adequate jury...