The Austin Court of Appeals recently upheld a jury verdict in favor of a condominium owner in a lawsuit brought by the association, in Canyon Vista Property Owners Association, Inc. v. Laubach, 2014 WL 411646 (Tex. App.—Austin). The association brought suit against Laubach for failure to pay assessments. The owner counterclaimed for breach of the Declaration. Laubach paid his outstanding assessments and the case went to trial on his counterclaim. Laubach presented evidence that the association had failed to maintain the common elements, specifically, the subflooring of Laubach’s unit, which caused the wood floor to flex unnaturally and create excessive noise. The court ordered the association to repair Laubach’s floor, and to the extent the association paid a licensed contractor less than $ 19,413.63 (the amount the jury found as the cost of repairs), to pay Laubach the difference.
On appeal the association first argued that the owner did not have standing to sue and recover damages for injury to the common elements. The court of appeals held that as a co-tenant of the common elements, Laubach had standing to sue, noting that the association failed to raise this argument at the trial court level. The association then argued that there was insufficient evidence to support the jury award of damages for loss of use of the unit. The court upheld the jury award of damages of $ 2,100 for Laubach’s expenses to be incurred in moving out of the unit for the one – month period for the repairs. The court did agree with the association that the jury’s award of $ 6,000 for loss of use was unsupported by the evidence. Although Laubach’s attorney had suggested the jury consider a calculation of damages based upon the number of days Laubach had to live in his unit with the floor in disrepair, the court of appeals pointed out there was no evidence presented of any diminution in value caused by the defective floor, no expert witness assigned a proportionate value to the use of proper floors, and the attorney’s statements by themselves were not evidence.
Finally, the association argued that the trial court erred by allowing evidence of the association’s insurance coverage. The court of appeals held that the association had “opened the door” by raising the issue of insurance in its case in chief. The association’s board member had testified that assessment payments included an annual assessment “for the insurance.”
Although filing the lawsuit got Laubach to pay his assessments, the association wound up having to pay over $ 21,000 to or on behalf of the owner.