Grounds for appealing a judgment dismissing a construction defects claim

Can I appeal a judgment dismissing my claim? Grounds for appeal that may lead to the judgment being overturned.

Unfortunately, in court proceedings for building defects, judgments dismissing the claim also occur, in which the judge dismisses the claim in part or in full, thus frustrating the owners’ expectations.

What can we do then? Can it be appealed? What can be argued in an appeal in a construction defects case to succeed?

To appeal a judgment, the main grounds are:

• An error in the assessment of the evidence.

Where the judge has accepted the arguments of the opposing expert and rejected those of the homeowners’ association’s expert, finding it proven that there is no damage, that it is less serious, or that it is not the defendants’ fault.

The evidence on file (the expert reports and the examination carried out at trial) must be freely assessed by the judge in accordance with “sound judgement”, a principle that allows the judge to reason and justify decisions freely. In other words, the judge may freely side with what one expert or another says. But this freedom of the judge has a limit, which is arbitrariness in the proceedings, which would occur when logical reasoning, the lessons of experience and scientific knowledge have not been taken into account. Sometimes the judge is considered to have erred when, after the evidence was taken, it was assessed inconsistently, departing from what was proven and from logic and accepting the unfounded and unproven conclusions of the opposing expert.

• The judgment is not properly reasoned.

Judgments must be thorough and properly reasoned. In any event, the judge must explain why one expert was preferred over another and why he or she found that expert more convincing, and that conviction must be based on the view that the expert was more rigorous, more scientific, carried out more tests, inspection holes, etc. It is not enough to say that the arguments of one of the parties are accepted; the judge must explain the “ratio decidendi”, how he or she became convinced that this assessment is the most correct.

• There is some inconsistency.

Where the judgment grants something inconsistent with what was requested, either by the claimant (the homeowners’ association), which, for example, did not ask for repairs but for compensation, or by accepting an argument not raised by the defendant developer at the appropriate procedural stage.

• There is an infringement of a legal provision.

Although it may seem unlikely, it would not be the first time that a judge has misinterpreted the obligations of the parties involved in the construction under the Spanish Building Act (Ley de Ordenación de la Edificación, LOE), the time limits, prevailing case law, etc. The provisions and case law considered to have been infringed must be cited.

• Finally, that a party was left defenceless in the proceedings

Such as having been refused, at the time, the submission or taking of some important evidence. It must be shown that this lack of defence was objected to at the time. The evidence may even be taken before the Provincial Court (Audiencia Provincial).

If you have a judgment dismissing, or partially upholding, a construction defects claim that is not yet final, and you would like our legal department to study whether an appeal is viable, contact us. DPcon S.L.