Sonder USA v. 635 N. Scott Street ( 2023 )

Case: 22-30360 Document: 00516919828 Page: 1 Date Filed: 10/04/2023
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
____________ FILED
October 4, 2023
No. 22-30360 Lyle W. Cayce
____________ Clerk
Sonder USA, Incorporated,
Plaintiff—Appellee,
versus
635 N. Scott Street, L.L.C.,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:18-CV-13891
______________________________
Before Clement, Haynes, and Oldham, Circuit Judges.
Edith Brown Clement, Circuit Judge: *
This is an appeal concerning a jury verdict rendered against
Defendant-Appellant 635 N. Scott Street, L.L.C. (“635”). 635 makes two
core arguments on appeal: (A) the district court erred in denying 635’s
motion for judgment as a matter of law; and (B) the district court erred in
denying 635’s motion for a new trial. For the reasons explained below, we
reject these arguments and AFFIRM.
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*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
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I.
A.
Sonder USA Incorporated (“Sonder”) is a hospitality company that
operates residential-style hotels. To that end, in 2017, Sonder entered into
lease agreements with 635 N. Scott Street, L.L.C. in New Orleans, Louisiana,
with the intent to lease the apartment complex and operate it as a residential
hotel. Each of Sonder’s lease agreements with 635 requires 635 to “promptly
provide” repair and maintenance to keep the apartments in “good working
order, suitable for residential use.” Prior to taking possession, Sonder
conducted its own inspections of the apartments, including the filters on the
air-conditioning units. Sonder located visible mold in at least one unit, which
Sonder ostensibly remediated prior to taking possession of the apartment.
Eventually, Sonder took possession of twenty-five of the twenty-six units
located at 635 North Scott Street. 1
Soon after taking possession of the units at 635, Sonder began to
observe water leakages in units throughout the building. In March 2018,
Sonder started documenting and reporting to 635 the water leakages. These
leaks continued through at least August 2018. In some units, water leaked
from the air-conditioning units into the walls and flooring. In another
apartment, water seeped through the ceiling, causing “substantial []
damage.”
By July 2018, Sonder reported the appearance of mold in multiple
apartments. In September 2018, an air-conditioning serviceman apprised
Sonder that mold had spread inside the air-conditioning units in three
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1
Sonder never took possession of unit 18.
2
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separate apartments. Shortly thereafter, Sonder reported to 635 the
emergence of mold in several additional apartments.
In response to Sonder’s many reports of mold, 635 would either deny
the existence of mold, deny responsibility for the mold, or inspect and
supposedly remediate the issue. 635 often dismissed complaints of mold as
mere “discoloration.” And, in response to the first reports from Sonder that
air-conditioner units had developed mold, the owner of 635 referred to the
damage as “[s]elf inflicted” and noted the absence of mold tests. Upon
hearing that the air-conditioning serviceman had discovered mold in the air-
conditioning units of three separate apartments, the owner of 635 responded:
“send me tests showing mold.”
Sonder obliged, engaging Dan Paradela of All American Home
Inspections to collect and test samples based on inspections of certain 635
units on October 15 and 16, 2018. Sonder shared with 635 the Paradela report,
which found visible mold in most units, elevated levels of mold in certain
units, the probability of hidden mold in improperly installed air conditioners,
and extensive water damage in most apartments and recommended further
testing. 635 rejected Paradela’s report, denying responsibility and refusing to
remediate. Instead, 635 threatened litigation and engaged its own mold
examiner, Dan Driskill, to inspect the property and conduct testing, which
Driskill completed on November 8 through 13, 2018.
But before Driskill could conduct his own mold testing, and after 635
refused to accept the Paradela report, Sonder terminated all twenty-five
leases with 635 on November 7, 2018, because of its policy against renting out
units that contain potential health hazards.
B.
In December 2018, Sonder filed suit against 635 in Louisiana’s
Orleans Parish Civil District Court, seeking declaratory judgment that the
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twenty-five leases between Sonder and 635 were terminated. On December
17, 2018, 635 removed the action to the United States District Court for the
Eastern District of Louisiana. On January 17, 2019, 635 answered and filed a
counterclaim for breach of contract and violation of the Louisiana Unfair
Trade Practices Act (“LUTPA”). Sonder filed an amended and restated
complaint, asserting three causes of action: (1) declaratory judgment that the
leases were dissolved because their use as short-term rentals was
“substantially impaired” due to 635’s failure to maintain, repair, and
remediate the issues; (2) breach of warranty that the units were in good
condition at the time of entry into the leases; (3) breach of contract relating
to 635’s failure to maintain the roof and HVAC systems and to remediate the
mold issues. Sonder also sought as damages the resulting lost profits. On
September 30, 2019, 635 amended its pleadings to add a request for damages
for breach of contract and violation of LUTPA.
After the district court denied cross-motions for summary judgment,
the case went before a jury in March 2022. At trial, Sonder introduced
evidence to show the existence of mold in the units, including the Paradela
testimony concerning his inspection and report and the expert testimony of
William Feaheny, whom Sonder engaged in July 2019 to conduct his own
mold inspection and to review Paradela’s findings. Among this evidence were
email reports and photograph attachments that an air-conditioning
serviceman, Basil Lohaza, sent to Sonder, which stated that certain air-
conditioning units at 635 contained mold. Although Sonder subpoenaed
Lohaza to testify, Lohaza notified the company that he would not honor the
subpoena because he intended to travel to Ukraine to volunteer in the
Ukraine-Russia conflict. The district court admitted the emails and
photographs as business records. 635 never objected to their authenticity at
trial.
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At the close of Sonder’s case in chief, 635 moved orally for judgment
as a matter of law. In support of its Rule 50(a) motion, Sonder made three
arguments: (1) Sonder failed to present expert evidence on the presence of
mold, which is required to show that lease cancelation was warranted; (2)
Sonder failed to show that 635 breached its warranty because Sonder
presented no admissible evidence of prior defects at the property; and (3) 635
did not breach its lease agreements because it delivered the units in good
condition. The district court denied the Rule 50(a) motion. After the defense
rested, 635 renewed its motion for judgment as a matter of law on 635’s
breach-of-contract claims, which motion the district court again denied. All
told, the trial lasted four days, during which nine witnesses testified and
eighty-seven exhibits came into evidence.
At the close of trial, the district court administered the jury
instructions, which included thirty-eight charges, and issued the verdict
form. After approximately six hours of deliberation, the jury returned a
verdict in Sonder’s favor as to each of Sonder’s claims but left the remainder
of the verdict form, containing 635’s counterclaims, blank at the verdict
form’s instruction. The district judge advised the jury that the verdict form’s
admonition to stop completing the form after the Sonder-claims section was
mistaken and instructed the jury to complete the remainder of the form.
Approximately five minutes later, the jury returned a verdict against 635 for
each of its counterclaims. The jury concluded that Sonder was entitled to
terminate all twenty-five leases and awarded Sonder $222,489.00 in
damages. 635 once again orally renewed its Rule 50(a) motion, which the
court denied.
On April 7, 2022, 635 filed a Rule 50(b) motion for judgment as a
matter of law on all claims and on 635’s counterclaim for wrongful
abandonment. 635’s Rule 50(b) motion, unlike any of its three previous Rule
50(a) motions, specifically argued that Sonder’s failure to present expert
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evidence as to causation of mold is fatal to Sonder’s claims and entitles 635 to
judgment as a matter of law on all the claims and counterclaims asserted. In
its opposition to 635’s Rule 50(b) motion, Sonder did not argue that 635 had
waived or forfeited this new argument by raising it for the first time in a Rule
50(b) motion. Also in its April 7 filing, 635 made a Rule 59 motion for a new
trial, citing a lack of evidence supporting the verdict as well as prejudicial jury
instructions and evidentiary rulings. The court denied both motions. 635
appealed.
II.
We review the district court’s denial of a motion for judgment as a
matter of law de novo, applying the same standard as the district court. Cowart
v. Erwin, 837 F.3d 444, 450 (5th Cir. 2016). A party is entitled to judgment as
a matter of law only where no reasonable jury would have had a legally
sufficient evidentiary basis to find otherwise. Apache Deepwater, L.L.C. v.
W&T Offshore, Inc., 930 F.3d 647, 653 (5th Cir. 2019) (citing Fed. R. Civ.
P. 50(a)). But, although our review is de novo, we recognize that “our
standard of review with respect to a jury verdict is especially
deferential.” Wantou v. Wal-Mart Stores Texas, L.L.C., 23 F.4th 422, 431
(5th Cir. 2022) (internal quotation omitted). Thus, “a Rule 50 motion must
be denied unless the facts and inferences point so strongly and
overwhelmingly in the movant’s favor that reasonable jurors could not reach
a contrary conclusion.” Id.“We review the denial of a motion for a new trial for abuse of
discretion.” Williams v. Manitowoc Cranes, L.L.C., 898 F.3d 607, 614 (5th
Cir. 2018) (internal quotation omitted). “[R]eview of the denial of a new trial
motion is more limited than when one is granted.” Whitehead v. Food Max of
Miss., Inc., 163 F.3d 265, 269 (5th Cir. 1998). In reviewing such a denial, “all
the factors that govern our review of the trial court’s decision favor
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affirmance.” Alaniz v. Zamora–Quezada, 591 F.3d 761, 770 (5th Cir. 2009)
(alterations adopted).
III.
A.
635 first argues that the district court erred in denying 635’s motion
for judgment as a matter of law because Sonder failed to carry its evidentiary
burden with respect to its claims. 635 also argues that it is entitled to
judgment as a matter of law with respect to its counterclaim of wrongful
abandonment. We disagree on both counts, as explained below.
1.
635 first argues that Sonder’s claims fail as a matter of law because
Sonder failed to present any expert evidence on the cause of mold. Causation,
635 argues, can be proven only through expert evidence and is necessary to
establish fault—an essential element under the relevant Louisiana statute for
either remedy that Sonder seeks, dissolution or damages. 2 But because 635
has not presented, and we have not located, binding or persuasive authority
for the proposition that expert evidence is necessary to establish mold
causation, and because Sonder presented unopposed lay evidence going to
causation, 635’s argument fails.
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2
Specifically, under Louisiana Civil Code Article 2715, which the parties agree
governs whether Sonder was entitled to cancel the leases, a party (i) may dissolve a lease if
its use of the property is “substantially impaired” “without the fault of the lessee” and (ii)
may demand damages if the lessor was at fault. LA. CIV. CODE ANN. art. 2715. Sonder does
not appear to dispute that it failed to present any expert evidence going to the issue of mold
causation. And, as for the sole expert that Sonder called at trial—Feaheny—the district
court ordered that Feaheny could not testify at trial on causation because Feaheny failed to
include such opinion in his expert report. But, as we discuss herein, Sonder did present lay
evidence going to mold causation.
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When a nonmovant fails in district court to object to a new issue being
raised in a Rule 50(b) motion, the new issue receives de novo appellate review.
Montano v. Orange Cnty., Tex., 842 F.3d 865, 877 (5th Cir. 2016) (collecting
cases). Here, none of 635’s three oral motions for judgment as a matter of law
argued that the law requires expert evidence of mold causation or that Sonder
had failed to offer it; instead, 635 argued merely that Sonder had failed to
present expert evidence of the existence of mold. 3 635 did raise the issue of
expert evidence and causation in its April 7, 2022, motion for judgment as a
matter of law under Rule 50(b), however. And now, 635 argues that, without
expert evidence on mold causation, Sonder cannot obtain lease cancelation
or damages under Article 2715, thus entitling 635 to judgment as a matter of
law on Sonder’s breach-of-contract claims and 635’s wrongful-abandonment
counterclaim. Sonder did not argue in its opposition to the Rule 50(b) motion
that 635 had waived or forfeited the causation issue by failing to raise it in the
Rule 50(a) motion.
But 635 has not presented, and we have not located, any binding or
even persuasive authority for the proposition that expert evidence is
necessary to prove mold causation. We have not located a Fifth Circuit or
Louisiana decision holding this, and the cases that 635 cites are either
completely inapposite (Shed, Allen, Hooks, and Hill involve expert evidence
being necessary to show that a mold caused illness, not the source of mold)
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3
At trial, Sonder did offer expert evidence of the presence of mold through Feaheny.
635 has not argued on appeal that the trial court erred in admitting such testimony—either
by deciding a Daubert motion in Sonder’s favor or otherwise. And 635 did not object to
Feaheny’s testimony that he agreed with Paradela’s conclusions set forth in the October
2018 report. Thus, the issue of whether Feaheny’s report and testimony established the
presence of mold at the time Sonder terminated the leases properly went before the jury.
In any event, 635 has not presented binding or persuasive case law showing that expert
evidence is necessary to prove the presence of mold, and, as explained herein, Sonder offered
lay evidence on the presence of mold through Paradela.
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or are unpublished, lower-court opinions that do not apply Louisiana law
(Qualls, Kemmerer, and Cagle). 4 Judgment as a matter of law is appropriate
only when “there is no legally sufficient evidentiary basis for a reasonable
jury to find for that party on that issue,” FED. R. CIV. P. 50(a)(1), and, here,
Sonder offered at trial lay evidence from Paradela going to mold causation, to
which 635 did not object. Accordingly, 635 has not established that the jury
lacked a legally sufficient evidentiary basis to find for Sonder on the question
of mold causation.
2.
The remainder of 635’s arguments as to its Rule 50 motion attempts
to rebut or undermine evidence that Sonder presented at trial. That approach
is unavailing, however, in light of the evidence adduced at trial and the highly
deferential standard of review.
The parties agree that each of Sonder’s claims, as well as 635’s
wrongful-abandonment counterclaim, turns on whether Sonder’s use of the
units was “substantially impaired” such that Sonder was entitled to cancel
the leases.
At trial, Sonder introduced evidence concerning (1) the water leakages
and mold that Sonder observed throughout 2018 in every unit that 635 leased
Sonder—identified and documented by a combination of Sonder and third-
party inspectors—(2) Sonder’s reporting these issues to 635, and (3) 635’s
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4
See Shed v. Johnny Coleman Builders, Inc., 761 F. App’x 404 (5th Cir. 2019); Allen
v. Pa. Eng’g Corp., 102 F.3d 194 (5th Cir. 1996); Hooks v. Nationwide Hous. Sys. LLC, No.
15-729, 2016 WL 3667134 (E.D. La. July 11, 2016); Hill v. GEO Grp., Inc., No. 1:18-cv-
01363, 2021 WL 6053783 (W.D. La. Dec. 21, 2021); Qualls v. State Farm Lloyds, 226 F.R.D.
551 (N.D. Tex. 2005); Kemmerer v. State Farm Ins. Co., No. 01-5445, 2004 WL 87017 (E.D.
Pa. Jan. 19, 2004); Cagle v. Allstate Tex. Lloyds, No. 4:04-cv-02953, 2005 WL 2076145 (S.D.
Tex. Aug. 25, 2005).
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failure to remediate the same. 5 In addition to offering documentary evidence
of the water leakages and mold, Sonder called as a witness Paradela, who
performed the 2018 inspection and testing. Paradela testified about, inter alia,
his firsthand observations of visible mold, the presence of toxic black mold,
as well as elevated moisture levels and structural defects in multiple units.
Sonder also presented expert evidence from Feaheny, which purported to
substantiate the Paradela report. The jury weighed this evidence and more,
deliberated for nearly six hours, and returned a verdict in Sonder’s favor with
respect to all claims and counterclaims. 6
In view of the evidence presented at trial and the highly deferential
standard of review, we cannot conclude that no reasonable jury would have
reached this verdict. And because we conclude that a reasonable jury could
have found Sonder was entitled to cancel the leases, 635’s attempt to
resurrect its wrongful-abandonment counterclaim—which likewise turns on
whether Sonder was empowered to dissolve the leases—also fails.
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5
635 argues on several occasions that the jury mistakenly viewed the 635-Sonder
lease agreements as a singular contract governing the whole building and that this mistaken
view infects the verdict. But the jury itself acknowledged in its verdict-form answers that,
in resolving the case, it was charged with individually reviewing each unit leased. 635 does
not dispute, moreover, that Sonder introduced at trial evidence going to the condition of
every unit leased; rather, 635 argues that the evidence adduced at trial was insufficient to
meet Sonder’s evidentiary burden as to Sonder’s claims.
6
The Jury Verdict Form consists of two main sections—“Plaintiff Sonder USA,
Inc.’s Breach of Contract Claim” and “Defendant 635 N. Scott St., LLC’s Counterclaim.”
Question three of the first section states as follows: “[D]id Defendant 635 N. Scott St.,
LLC breach its obligations under ANY of the individual leases justifying Plaintiff Sonder
USA, Inc.’s termination of those leases?” Because breach of warranty is a breach-of-
contract claim, section one of the verdict form appears to encompass each of Sonder’s
claims for breach of the lease agreements, notwithstanding the singular “Claim” in the title
of section one.
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B.
635 next argues that, in the alternative, it is entitled to a new trial
because (1) the district court erroneously admitted certain emails and
photograph attachments that 635 claims are inadmissible hearsay or were not
properly authenticated and (2) the jury charge and verdict form contained
prejudicial defects. We conclude that 635 is not entitled to a new trial.
1.
A trial judge’s ruling on evidentiary matters will not be grounds for a
new trial unless a substantial right of a party is adversely affected. Echeverry
v. Jazz Casino Co., L.L.C., 988 F.3d 221, 235 (5th Cir. 2021). A party’s
substantial rights are affected if, for example, erroneously admitted evidence
is the only evidence admitted to prove an element. Anderson v. Siemens Corp.,
335 F.3d 466, 473–75 (5th Cir. 2021). “When a party fails to show that
excluding the evidence would have altered the outcome of the case, the party
has not met its burden for a new trial.” Echeverry, 988 F.3d at 235.
The evidence about which 635 complains are two emails with
photograph attachments sent by Basil Lohaza, the air-conditioning repairman
that first identified the water leakages and mold, to Sonder. 635 complains
that the emails constituted inadmissible hearsay and that the photographs
contained therein were never authenticated. We need not reach either issue,
however, because the complained-of emails and photographs would not have
altered the outcome of the case.
Here, the two emails offer no information that was not already
provided by other evidence adduced at trial. Specifically, numerous other
pieces of evidence, which 635 does not dispute were properly admitted, go to
the same issue—the existence of water leakages and mold related to air-
conditioning units throughout the building during the relevant time period.
635 does not argue that Lohaza’s evidence uniquely addressed any issues
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otherwise absent from the record developed at trial. Therefore, in light of the
ample evidenced adduced at trial, we are persuaded that, even absent the
admission of these two emails and photograph attachments, substantial
evidence supported the jury’s verdict.
2.
We apply a two-part test to review challenges to jury instructions.
Navigant Consulting, 508 F.3d at 293. First, an appellant must “demonstrate
that the charge as a whole creates substantial and ineradicable doubt whether
the jury has been properly guided in its deliberations.” Id. (internal quotation
omitted). Second, even where a jury instruction was erroneous, we will not
reverse the district court if we find that, in light of the entire record, “the
challenged instruction could not have affected the outcome of the case.” Id.
(internal quotation omitted).
635 argues, in essence: (i) jury charge number 31 failed to include that
the lessee must be free from fault to obtain lease dissolution; (ii) jury charge
number 23 reflects Louisiana Civil Code Article 1993 instead of Article 2715,
which controls; and (iii) the language of charge number 23, coupled with the
verdict form’s admonition to stop completing the form if the jury found for
Sonder on its claims, resulted in the jury’s failure to properly consider 635’s
counterclaim.
As an initial matter, 635 forfeited its objection to charge number 23 by
failing to raise it at the charge conference. See Fed. R. Civ. P. 51(d); see
also Jimenez v. Wood Cnty., 660 F.3d 841, 845 (5th Cir. 2011) (en banc). 7 At
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7
We have also held that a party’s failure to adequately object to a jury instruction
means that the party has waived that objection on appeal. Eastman Chem. Co. v. Plastipure,
Inc., 775 F.3d 230, 240 (5th Cir. 2014); Thompson v. Gaar, 59 F.3d 1240 (5th Cir. 1995). But
regardless of whether 635 waived or forfeited its objection to charge number 23, 635’s
challenge to this jury instruction fails: if the former applies, we need not even review the
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the charge conference, 635’s counsel stated that it agreed with the inclusion
of charge number 23. As the district court recognized, 635 “acknowledge[d]
that it did not object to jury charge Number 23 during the charge
conference.” Under the plain text of Rule 51, 635 cannot “assign as error the
giving or the failure to give an instruction” without “object[ing] thereto
before the jury retires to consider its verdict . . . .” Fed. R. Civ. P. 51. In
cases of failure to preserve an objection to a jury instruction, the instruction
is subject to plain-error review. See Baisden v. I’m Ready Prods., Inc., 693 F.3d
491, 506 (5th Cir. 2012). In that context, plain error exists only when the
charge as a whole is “so erroneous as to cause a grave miscarriage of justice
or seriously affects the fairness, integrity, or public reputation of judicial
proceedings.” United States v. Crawford, 52 F.3d 1303, 1310 (5th Cir. 1995).
On plain-error review, 635’s argument as to the jury instructions fails
because the jury charge and verdict form, when read together, set forth the
exact legal principles on which 635 wanted the jury instructed. As to point
(i), 635 complains that it was “plain and obvious error” for the jury
instructions to omit the requirement that “Sonder be free from fault to obtain
dissolution.” But the instructions did advise the jury in charge number 23
that, for Sonder to obtain dissolution of the leases, Sonder must be faultless,
stating “a party cannot assert a claim for breach of contract unless that party
has performed its own obligations under the contract.”
635’s point (ii) fails for similar reasons: regardless of the particular
provision of the Louisiana code from which the instructions draw their
language, the parties agreed on the substantive rule that needed to be
included—and in fact was included—in the jury charge, namely that, for
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objection on appeal; if the latter applies, 635 fails on plain-error review for reasons
explained herein.
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Sonder to obtain dissolution for the lessor’s breach, the lessee must be free
of fault.
Relatedly, 635 argues that “all of the questions about Sonder’s claim
on the Verdict Form were tethered to a breach of the lease, not to dissolution
separate and apart from a breach of lease,” that there “was not one question
asking the jury whether Sonder was entitled to ‘dissolution’ of the leases or
even asking whether the units were ‘substantially impaired,” and that
“[n]either ‘dissolution’ nor ‘substantially impaired’ appear in the Verdict
Form.” But the precise language that 635 complains was omitted from the
verdict form appears in the jury charge, specifically charge number 31, which
states that, “[u]nder Louisiana law, a tenant may obtain dissolution of a lease
when its use of the leased property is substantially impaired and may obtain
damages if the landlord was at fault.” “Verdict forms are considered part of
the jury instruction, and we evaluate the combined effect on the jury.” United
States v. Fairley, 880 F.3d 198, 208 (5th Cir. 2018); see also Jones v. United
States, 527 U.S. 373, 393 (1999) (“[A]lthough the verdict forms standing
alone could have [confused the jury], any confusion created by the verdict
forms was clarified when considered in light of the entire jury instruction.”)
(internal quotation omitted).
Here, because the legal principle that 635 complains was omitted from
the verdict form was in fact contained in the form, and because charge
number 31 instructs the jury on this same point, 635 has failed to show plain
error in how the jury was instructed. In any event, 635 had the opportunity to
object to the verdict form and failed to do so.
Finally, as for 635’s point (iii), 635 itself implicitly concedes that the
district judge cured the erroneous verdict-form language at trial by correcting
the complained-of instruction and specifically re-instructing the jury to
resolve 635’s counterclaim. As established above, the parties agree that
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whether Sonder was entitled to cancel the leases determines both Sonder’s
claims and 635’s wrongful-abandonment counterclaim. The jury
instructions, read alongside the verdict form, reflect that the jury was
instructed to consider and resolve this issue, that the jury weighed the
evidence going to this issue, and that the jury, after six hours of deliberation,
rendered a verdict in Sonder’s favor as to all claims and counterclaims. 8
IV.
For the foregoing reasons, we AFFIRM.
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8
635 also argues that prejudice resulted from the fact the jury deliberated for only
five minutes after the trial judge instructed them to return to the deliberation room to
resolve the counterclaims. But that fact is immaterial here. The jury deliberated for six
hours prior to the judge’s instruction to resolve 635’s counterclaims, during which time the
jury—per their instructions—undoubtedly discussed 635’s conduct as compared to
Sonder’s with respect to fault and substantial impairment.
15