Vista del Mar Condominiums LLC v. Dunn Southeast Inc et al

Filing 249

ORDER denying 237 Motion for New Trial. Signed by Honorable J Michelle Childs on 2/20/2013.(hcic, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
FLORENCE DIVISION

Vista del Mar Condominiums, LLC,

)
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Plaintiff,
)
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v.
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Nichols Brosch Wurst Wolfe & Associates, )
Inc., and Newcomb & Boyd,
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Defendants.
)
____________________________________)

Civil Action No.: 4:09-cv-02869-JMC

ORDER AND OPINION

This matter is before the court upon Plaintiff Vista del Mar Condominiums, LLC’s (“Vista
del Mar”) Motion for a New Trial [Dkt. No. 237], pursuant to Federal Rule of Civil Procedure 59,
contending that the court improperly instructed the jury by excluding certain jury instructions
requested by Vista del Mar and allowing certain expert testimony about the standard of care in this
case. For the reasons below, the court denies Vista del Mar’s motion.
FACTUAL AND PROCEDURAL BACKGROUND
This case concerned allegations of professional negligence arising from the design of the
heating, ventilating, and air-conditioning (“HVAC”) system installed at a condominium project
located in Myrtle Beach, South Carolina. Vista del Mar was the project developer. Defendant
Nichols Brosch Wurst Wolfe & Associates, Inc. provided architectural services on the project and
Defendant Newcomb & Boyd, a mechanical engineering firm, provided the design of the HVAC
systems for the project. In this suit Vista del Mar alleged that the HVAC system was defectively

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designed because it did not provide positive pressurization of the condominium, which allegedly
resulted in mold and mildew problems on the interior of the building.
The case was tried before this court from July 23, 2012, through July 27, 2012. During trial,
the parties’ experts provided differing testimony as to the HVAC system design requirements,
including the applicable building codes. Additionally, the parties offered conflicting accounts of
discussions between the parties concerning Defendants’ recommendations to Vista del Mar
regarding the design of the HVAC system and Vista del Mar’s alleged instructions to Defendants
to utilize a cheaper design.
Prior to submitting the matter to the jury for deliberation, Vista del Mar requested that the
court charge the jury on certain South Carolina regulations concerning architects and engineers
ostensibly requiring that design objections be put in writing and requiring the designer to
affirmatively refuse to incorporate the objectionable design. The court declined to include Vista del
Mar’s requested language in the jury instructions given by the court. During the examination of
witnesses, Vista del Mar insisted on the application of a national standard of care and objected to
Defendants’ reference to local customs or practices among architects and engineers designing
HVAC systems for condominium projects in the Myrtle Beach area. Overruling Vista del Mar’s
objection, the court allowed each parties’ expert witnesses to testify regarding their opinions of the
applicable geographical scope of the standard of care for architects and engineers. The jury returned
a verdict in favor of Defendants.
STANDARD OF REVIEW
“[A] Rule 59(a) motion for new trial is a matter “resting in the sound discretion of the trial
judge.” Eberhardt v. Integrated Design & Constr., Inc., 167 F.3d 861, 869 (4th Cir. 1999). A new

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trial should be granted “only if (1) the verdict is against the clear weight of the evidence, (2) is based
on evidence which is false, or (3) will result in a miscarriage of justice, even though there may be
substantial evidence which would prevent the direction of a verdict.” Dennis v. Columbia Colleton
Med. Ctr., Inc., 290 F.3d 639, 650 (4th Cir. 2002) (citations omitted). In considering a motion for
a new trial, the court “must view the evidence in the light most favorable to the prevailing party.”
Perrin v. O’Leary, 36 F. Supp. 2d 265, 266 (D.S.C. 1998). “Such a motion should be denied, unless
there were substantial errors in evidentiary rulings or jury charges, or unless ‘the evidence, together
with all inferences that can reasonably be drawn therefrom, is so one-sided that reasonable people
could not disagree on the verdict.’” Id. (quoting Bennett Enterprises, Inc. v. Domino’s Pizza, Inc.,
45 F.3d 493, 497 (D.C. Cir. 1995)).
The trial court has broad discretion in appropriately instructing the jury. Teague v. Bakker,
35 F.3d 978, 985 (4th Cir. 1994). In determining the adequacy of jury instructions, the court must
look to “whether the instructions construed as a whole, and in light of the whole record, adequately
informed the jury of the controlling legal principles without misleading or confusing the jury to the
prejudice of the objecting party.” Spell v. McDaniel, 824 F.2d 1380, 1395 (4th Cir. 1987)). To
demonstrate the necessity for a new trial based on the court’s refusal to give an instruction proposed
by a party, the challenging party has the heavy burden to demonstrate that “the requested instruction
‘(1) was correct; (2) was not substantially covered by the court's charge to the jury; and (3) dealt
with some point in the trial so important, that failure to give the requested instruction seriously
impaired’ that party's ability to make its case.” Noel v. Artson, 641 F.3d 580, 586-87 (4th Cir. 2011)
(quoting United States v. Lighty, 616 F.3d 321, 366 (4th Cir. 2010)).

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DISCUSSION
Vista del Mar argues that the court erred in denying its request to include the following
proposed requests to charge, consisting of portions of the South Carolina Code of Regulations
relating to the practice of architecture and engineering, in the court’s jury instructions:
1)

If in the course of work on a project, the architect or firm becomes aware of
a decision taken by the employer or client, against the architect's or firm's
advice, which violates applicable state or municipal building laws and
regulations and which will materially affect adversely the safety to the public
of the finished project, the architect or firm shall: (a) report the decision to
the local building inspector or other public official charged with the
enforcement of the applicable state or municipal building laws and
regulations; and (b) refuse to consent to the decision; and (c) terminate
services with reference to the project in circumstances where the architect or
firm reasonably believes that other such decisions will be taken
notwithstanding the architect's or firm's objections. S.C. Code Regs. §
11-12(B)(3);

2)

If the judgment of the engineer or surveyor is overruled under circumstances
where the safety, health, and welfare of the public are endangered, he shall
inform his employer of the possible consequences and notify other proper
authority of the situation, as may be appropriate. S.C. Code Regs. §
49-301(B); and

3)

An engineer shall be completely objective and truthful in all professional
reports, statements, or testimony. He shall include all relevant and pertinent
information in such reports, statements, or testimony. S.C. Code Regs. §
49-303(A).

Vista del Mar complains that the court’s exclusion of these specific regulations effectively resulted
in a finding that there was no evidence presented at trial concerning Defendants’ violation of the
regulations and the relationship of the violations to the proximate cause of Vista del Mar’s damages.
Vista del Mar’s arguments miss the mark.
Although the court declined to include Vista del Mar’s requested charges, the court charged
the jury on the law of professional negligence generally as follows:

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Plaintiff Claims that Defendant Nichols Brosch Wurst Wolfe & Associates, Inc. and
Defendant Newcomb & Boyd committed professional negligence against Plaintiff.
In order to prevail in a negligence claim, Plaintiff must show that the Defendants
owed a duty to Plaintiff, that Defendants breached that duty and that the breach was
the proximate cause of an injury to Plaintiff. The law requires that Defendants use
that degree of knowledge, care, and skill ordinarily used by professionals in good
standing under the same or similar circumstances and that Defendants follow the
generally accepted practices and procedures in their professions. To prove a claim
of professional negligence, Plaintiff must show that Defendants failed to use that
degree of knowledge, care, and skill ordinarily used by professionals in good
standing under the same or similar circumstances and failed to follow the generally
accepted practices and procedures in their professions. In addition, Plaintiff must
show that such actions were a proximate cause of Plaintiff's alleged damages.
The court’s jury instruction correctly reflects the law of professional negligence and the standard
of care. See Doe v. American Red Cross Blood Services, S.C. Region, 297 S.C. 430, 435, 377 S.E.2d
323, 326 (1989) (“We now hold that in a professional negligence cause of action, the standard of
care that the plaintiff must prove is that the professional failed to conform to the generally
recognized and accepted practices in his profession.”). The purpose of a court’s charge to the jury
is to inform the jury of the controlling legal principles. See Spell, 824 F.2d at 1395. The court found
it inappropriate to include the requested instructions within its charge to the jury given that the
parties submitted competing expert testimony and other evidence concerning the standard of care
and the proximate cause of Vista del Mar’s damages during the trial. See Spires v. Acceleration Nat.
Ins. Co., 417 F. Supp. 2d 750, 754 (D.S.C. 2006) (citing Tommy L. Griffin Plumbing & Heating Co.
v. Jordan, Jones & Goulding, Inc., 351 S.C. 459, 570 S.E.2d 197, 203 (2002)) (“In South Carolina,
expert testimony is required in a professional negligence action to establish both the standard of care
and the defendant's failure to conform to that standard.”). To charge the jury as Vista del Mar
requested would risk potential confusion as to the issues before the jury. Therefore, Vista del Mar
is not entitled to a new trial based on the court’s exclusion of the requested jury instructions.

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Additionally, Vista del Mar argues that it is entitled to a new trial because the court allowed
the admission of certain testimony related to HVAC designs utilized in the Myrtle Beach, South
Carolina area. Relying on King v. Williams, 276 S.C. 478, 482, 279 S.E.2d 618, 620 (1981). and
Folkens v. Hunt, 290 S.C. 194, 200, 348 S.E.2d 839, 843 (Ct. App. 1986), Vista del Mar contends
that the court erred because South Carolina courts have expressly overruled the “locality rule” as
applies to the standard of care in professional negligence in favor of a more national standard, or one
without geographical boundaries. However, this court has not found South Carolina law to abolish
the locality rule so broadly across all professions. In fact, King only abrogated the locality rule in
medical malpractice actions and Folken was limited to accounting professional negligence matters.
Other professional negligence claims, such as legal malpractice, are limited to a statewide standard
of care under South Carolina law. See Smith v. Haynsworth, Marion, McKay & Geurard, 322 S.C.
433, 437-38, 472 S.E.2d 612, 614 (1996). Vista del Mar has not cited, and this court has not found,
any South Carolina case commenting on the geographical limitations applicable in determining the
standard of care for architectural or engineering professional negligence claims. Moreover, to the
extent that Vista del Mar asserts that Defendants’ experts testified about other condominium projects
in the area without laying the proper foundation, such assertion is without merit. The court qualified
the witnesses to provide expert opinion testimony pursuant to Federal Rule of Evidence 702, and
each expert’s testimony was based on his own personal knowledge, skill, and experience. See e.g.,
United States v. Wilson, 484 F.3d 267, 274-75 (4th Cir. 2007) (discussing the foundation for
experiential expert testimony). Beyond the requirements of Rule 702, Vista del Mar’s argument is
unclear as to what additional foundation Defendants were required to establish prior to the admission
of these experts’ opinion testimony on the appropriate standard of care. Accordingly, the court

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appropriately allowed the presentation of evidence concerning the degree of knowledge, care, and
skill ordinarily used by architectural and engineering professionals in designing HVAC systems for
condominium projects in Myrtle Beach, South Carolina, and Vista del Mar is not entitled to a new
trial on this basis.
CONCLUSION
For the foregoing reasons, Plaintiff Vista del Mar Condominiums, LLC’s Motion for a New
Trial [Dkt. No. 237] is DENIED.
IT IS SO ORDERED.

United States District Judge
February 20, 2013
Greenville, South Carolina

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