Dixie Roofing v. Allen Parish Sch. Bd.

690 So. 2d 49, 1996 WL 230796
CourtLouisiana Court of Appeal
DecidedMay 8, 1996
Docket95-1526, 95-1527
StatusPublished
Cited by15 cases

This text of 690 So. 2d 49 (Dixie Roofing v. Allen Parish Sch. Bd.) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dixie Roofing v. Allen Parish Sch. Bd., 690 So. 2d 49, 1996 WL 230796 (La. Ct. App. 1996).

Opinion

690 So.2d 49 (1996)

DIXIE ROOFING COMPANY OF PINEVILLE, INC., Plaintiff-Appellant,
v.
ALLEN PARISH SCHOOL BOARD, Defendant-Appellee.
ALLEN PARISH SCHOOL BOARD, Plaintiff-Appellee,
v.
DIXIE ROOFING COMPANY OF PINEVILLE, INC., et al., Defendants-Appellants.

Nos. 95-1526, 95-1527.

Court of Appeal of Louisiana, Third Circuit.

May 8, 1996.
Rehearing Denied July 15, 1996.
Writ Denied November 8, 1996.

*51 James A. Bolen Jr., Madeline Lee, Alexandria, for Allen Parish School Board.

William J. Hamlin, William Charles Ellison, New Orleans, for Firestone Tire.

Before YELVERTON, COOKS and DECUIR, JJ.

COOKS, Judge.

This is an appeal from a judgment in favor of the Allen Parish School Board against Dixie Roofing Company of Pineville and Firestone Tire and Rubber Company for a defective roof. For the following reasons, we affirm.

FACTS

The Oakdale Elementary School was built in 1979. The original roof on the school began to leak. When repair attempts proved futile, the Allen Parish School Board (hereinafter referred to as Board) sued the original contractor and roofer. The case was settled, and the Board decided to use the settlement funds to construct a new roof.

On July 3, 1985, the Board executed a written contract with Dixie Roofing Company of Pineville for the sum of $183,835.00 to remove the old roof and replace it with a new *52 roof. Part of the materials used to replace the roof consisted of a single ply rubber membrane called EPDM RubberGard, manufactured by Firestone Tire and Rubber Company. The contract expressly provided detailed directions to assure proper installation of Firestone's EPDM roofing material. The specifications also referred to Firestone's warranty, which required approval by Firestone on completion of the construction. Firestone permits only licensed contractors to use its material as a warranty condition. Eventually Dixie was licensed by Firestone and the two companies entered into a License Agreement. Pursuant to this agreement Dixie bought the EPDM material from Firestone.

Work began on the school in October, 1985. In mid-November 1985, while the re-roofing project was ongoing, a heavy rainstorm resulted in severe leaking, causing damage to the school's walls, ceilings, carpet and books. Firestone contended the leaks occurred because Dixie used a non-Firestone approved cement, contrary to specifications.

Construction of the roof was completed and the job was readied for inspection in July, 1986. The Board's architect issued a punch-list of construction corrections and required correction of the problems listed before he would "recognize the warranty." After completion of these, Firestone approved the job and issued its warranty to the Board on September 5, 1986.

From the very outset, the new roof leaked. Dixie was notified of the problems and made unsuccessful attempts to repair the roof. Because the leaks persisted, the Board withheld money due Dixie pursuant to the contract. In 1990 and 1991 the Board hired its own roofer to complete various repairs.

PROCEDURAL HISTORY

Dixie filed suit in June, 1987 for declaratory judgment against both the Board and Firestone. The suit involved the interior damage caused in the initial November, 1985 rainstorm and sought a declaration as to responsibility for that damage. In February 1990, the Board filed suit against Dixie, alleging Dixie breached its contact by failing to adhere to specifications, use proper materials, and perform in a workmanlike manner. Approximately 10 months later, the Board served Firestone with a First Supplemental and Amending Petition alleging Firestone also breached its warranty contract. Firestone filed an exception of no cause of action and answered, asserting as affirmative defenses the terms, conditions and limitations of the Warranty, and prescription.

Suit was tried in July, 1994, followed by extensive briefing to the trial court. The trial court rendered a decision on January 23, 1995, holding Firestone and Dixie jointly liable to the Board in the amount of $339,702.61, plus costs and judicial interest. The trial court found Dixie liable because it contracted to build a roof guaranteeing it would not leak and it failed to accomplish this feat, due in part to defective installation. The trial court also found the RubberGard roofing membrane contained redhibitory defects, for which the manufacturer, Firestone, was responsible. Firestone and Dixie have appealed the judgment.

ANALYSIS

Firestone alleges it cannot be subject to a redhibitory action for the following reasons:

1) The Firestone warranty precludes liability for redhibitory defects.
2) Firestone, as manufacturer of a component part of a "whole thing" constructed by another, cannot be subject to a redhibitory action.
3) Firestone made no representations of quality of product that were relied on by the School Board, and therefore no cause of action in redhibition was created
4) Any redhibitory action, if available, has prescribed.
5) Alternatively, the evidence in the record is legally insufficient to support a finding of a redhibitory defect

Initially, Firestone argues its warranty unambiguously waives liability for redhibitory defects. Firestone also contends the trial court's failure to discuss this waiver in its reasons for judgment requires this court to conduct a de novo review of the record. However, simply because a judgment does *53 not specifically address every defense presented does not amount to reversible error. Such silence on the part of the trial court can only be considered a rejection of that defense. Cypress Oilfield Contractors, Inc. v. McGoldrick Oil Co., Inc., 525 So.2d 1157 (La.App. 3 Cir.), writ denied, 530 So.2d 570 (La.1988); Reed v. Seacoast Products, Inc., 458 So.2d 971 (La.App. 3 Cir.1984).

The record shows Firestone's warranty was not incorporated in the original contract between Dixie and the School Board. Firestone acknowledges in brief the warranty issuance required completion of the construction and approval by it. A valid waiver of warranty requires all of the following: (1) it must be written in clear and unambiguous terms; (2) it must be contained in the sales document; and (3) it must be brought to the attention of the buyer or explained to him. Matthis v. Couvillion, 613 So.2d 1024, 1025 (La.App. 3 Cir.1993); Thibodeaux v. Meaux's Auto Sales, Inc., 364 So.2d 1370, 1371 (La.App. 3 Cir. 1978). Therefore, under Louisiana law the warranty does not limit the School Board's right to seek damages.

Firestone also contends it cannot be liable in redhibition because a manufacturer of a component part of a "whole thing" constructed by another is not subject to the redhibitory action. Firestone argues it did not manufacture the roof, nor sell the roof, but merely sold some of the roofing materials. Firestone relies on the case of Pittman v. Kaiser Aluminum, 559 So.2d 879 (La.App. 4 Cir.1990). In Pittman the plaintiff sued the manufacturer of certain wiring components installed in his new home after it was destroyed by fire, alleging faulty wiring led to the disaster. The court of appeals upheld the exceptions of no cause of action finding no vendor/vendee relationship existed between the building owner and the component part manufacturers.

We find the facts presented in this case more closely resemble those present in Aizpurua v. Crane Pool Co., Inc.,

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Cite This Page — Counsel Stack

Bluebook (online)
690 So. 2d 49, 1996 WL 230796, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dixie-roofing-v-allen-parish-sch-bd-lactapp-1996.