3d DCA Watch -- Preservation Acts 1 & 2

Dear readers let's dive into our weekly feature and visit with the friendly villagers of 3d DCA land:

Fischer Island v. Cohen:

Sheesh, how much litigation comes out of that place? This one is an appeal by Fischer Island of a jury verdict for delay in construction and alternative living arrangement damages flowing from not constructing a home for the plaintiffs within the time set forth by contract. Alan Dimond appears on the opinion for the Defendant.

My first question -- why was this tried? From the opinion it seems there was no dispute that construction was completed well after the contract date. So there should really have been no question the plaintiffs were entitled to delay damages, awarded here in the amount of $700k or so. I guess they were bickering over the amount --these lawyers couldn't resolve that? The jury also awarded $144k in alternative living arrangement damages, in that the plaintiffs had to lease for nine months while their home was being built.

From what I can tell, GT only appealed the alternative living arrangement award. So they basically gave up on the $700k. The primary argument on appeal was that awarding both sets of damages is double recovery.

But here's what Judge Cortinas noted -- Fischer Island never objected to the introduction of the alternative living arrangement evidence, nor did it object to the verdict form that allowed those damages. On top of that, Judge Cortinas wrote:

The jury calculated the delay damages based upon the fair market net rental value of the home and awarded delay damages through December 2006. Fisher Island objected only on grounds that the damages proposed by the Cohens were duplicative. Importantly, Fisher Island never objected to the proper measure of damages and, thus, did not preserve this issue for appeal.

So the only issue preserved was whether or not it was double recovery. As the time frames did not overlap, the 3d held that there was no duplicative recovery. Affirmed.

Meanwhile, Judge Schwartz authored an opinion that I offer without comment here.