Hai Nam Chin. Rest. Part. v. B & B Const.

942 So. 2d 97, 2006 WL 3093355
CourtLouisiana Court of Appeal
DecidedNovember 2, 2006
Docket2006-729
StatusPublished
Cited by3 cases

This text of 942 So. 2d 97 (Hai Nam Chin. Rest. Part. v. B & B Const.) 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
Hai Nam Chin. Rest. Part. v. B & B Const., 942 So. 2d 97, 2006 WL 3093355 (La. Ct. App. 2006).

Opinion

942 So.2d 97 (2006)

HAI NAM CHINESE RESTAURANT PARTNERSHIP
v.
B & B CONSTRUCTION OF NEW IBERIA, et al.

No. 2006-729.

Court of Appeal of Louisiana, Third Circuit.

November 2, 2006.

*98 Roger Chadwick Edwards, Jr., Edwards & Edwards, Abbeville, LA, for Intervenor Appellee—Third Generation Properties, L.L.C.

Mark Christopher Surprenant, Adams & Reese, New Orleans, LA, for Defendant— GS Roofing Products Co., Inc.

Paul Gonsoulin Moresi, III, Abbeville, LA, for Plaintiff/Appellant—Hai Nam Chinese Restaurant Partnership.

Mark Gerard Artall, Lafayette, LA, for Secondary Defendant/Appellant—B & B Construction of New Iberia, Inc.

*99 Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, J. DAVID PAINTER, and JAMES T. GENOVESE, Judges.

THIBODEAUX, Chief Judge.

Plaintiff-appellant, Hai Nam Chinese Restaurant Partnership ("Hai Nam"), filed an action for breach of contract and breach of warranty against its roofer, defendant-appellee, B & B Construction of New Iberia, Inc. ("B & B"), because of a defect in the new roof that it paid to have installed at its restaurant. The trial court found that the roofing contract had been breached due to the negligent installation of the roof and awarded Hai Nam the return of the full roofing contract cost. Third Generation Properties, L.L.C. ("Third Generation"), the owner-lessor of Hai Nam's restaurant space, intervened in the action, seeking a recovery of any damages awarded to Hai Nam in the main demand. The trial court relied on the indemnification clause in their lease agreement and ruled in favor of Third Generation. Hai Nam appeals that ruling, and B & B has answered the appeal, seeking a reversal of the trial court's judgment against it on the main demand.

We affirm the trial court's judgment in favor of Hai Nam and against B & B Construction. The judgment of the trial court on the incidental demand in favor of Third Generation is reversed. Under the terms of the lease agreement and the record evidence, Third Generation did not suffer a loss because of any act of alleged noncompliance with the lease agreement.

I.

ISSUES

1. Did the trial court err in finding that B & B negligently installed the roof and, therefore, breached the roof construction contract?
2. Did the trial court err in awarding Hai Nam the return of the entire roof construction price that had been paid to B & B?
3. Did the trial court err in finding that Hai Nam was obligated under its lease agreement to indemnify Third Generation for the failure of the roof?

II.

FACTUAL BACKGROUND

Ke Nong Shi and Xue (a/k/a Linda) Mei Yang are the partners comprising the Hai Nam Chinese Restaurant Partnership (hereinafter referred to collectively as "Hai Nam"). Hai Nam entered into a commercial lease agreement with the entity, Abbeville Associates, for the lease of restaurant space in the strip mall known as the Abbeville Shopping Center. The primary lease term was August 1, 1998, through July 31, 2004. During the primary lease term, the strip mall was purchased by Third Generation Properties, L.L.C., and the existing lease was assigned to Third Generation.

Although the regular monthly rent was $900.00, Hai Nam was given a $200.00 per month rent credit for the entire primary lease term, resulting in a reduced monthly rent obligation of $700.00. This amounted to a total rent reduction of $14,400.00 during the initial lease term. The basis for the rent credit was explained in the lease agreement as follows:

2.4 BASE RENT: The first payment of rent shall be due on the day that the term of this lease begins and subsequent payments of rent shall be due on the first day of each succeeding calendar month throughout the term of this lease. Except as provided herein the rent for the period from August 1, 1998 through *100 July 31, 2004 shall be a monthly rental of $900.00 and shall be paid as follows:
A. Lessor and Lessees recognize that there is a need for major repairs to the roof, air-conditioning and sewage facilities in the building herein leased. Estimates for those repairs indicate that it will approximate $25,000.00 to make the necessary repairs. Lessees agree to make the repairs which will satisfy their needs and place the premises in a condition satisfactorily [sic] to Lessees. However, Lessor will cooperate and make every effort to obtain the municipal or governmental permits necessary to repair the plumbing problems that currently exist. In consideration thereof Lessor agrees to provide a rent credit to Lessees in an amount of $200.00 a month for the entirety of the primary term. It being understood by and between Lessor and Lessees that Lessees shall commence paying the sum of $700.00 per month for the entire primary term. The agreement as herein stated is meant to be an exception to the provisions of this lease expressed in Paragraph 4.1 wherein Lessees must obtain written consent of Lessor prior to making any improvements on the premises.

During the lease term, Hai Nam undertook repairs of the plumbing, air conditioning, and roof. Hai Nam paid $2,500.00 for repair work to the plumbing to unplug drains. Hai Nam also paid $9,692.83 for the installation of new air conditioning duct work and for the replacement of one of the location's two, roof-top air conditioning units. In addition, Hai Nam paid $12,585.23 for the installation of a new roof.

The roof was replaced because, by all accounts, it was in very poor condition and leaked excessively. According to Hai Nam, an inspection by the state health department determined it would be necessary for the roof leaks to be resolved before the restaurant could be opened. Therefore, in September 1998, prior to opening, Hai Nam accepted B & B's estimate for the installation of a new roof, which included a twelve-year materials warranty and a five-year labor warranty. B & B completed the installation in October 1998 and was promptly paid. Hai Nam also paid B & B to install new ceiling tiles throughout the restaurant at a cost of $3,200.00. Hai Nam, in sum, paid a total of $27,978.06 for repairs and improvements to the leased space during the primary lease term.

Approximately one year later, the new roof began to leak. Although B & B responded to numerous calls from Hai Nam over the next three years to address the leaking, the problems were never resolved. Ultimately, in 2002, even though the five-year labor warranty was still in effect, B & B refused to respond to repair calls from Hai Nam. As a result, on October 16, 2002, Hai Nam filed suit, alleging breach of contract and breach of warranty.[1] Hai Nam continued its restaurant operations at the leased location until August 31, 2004. When Hai Nam relocated its restaurant (for reasons unrelated to the leaky roof issue), there had been no resolution of the pending roof dispute and the roof was still leaking.

In September 2004, the month following Hai Nam's move, Third Generation, the *101 lessor-owner of the property, replaced the roof that had been installed by B & B, based on its contractor's (Glenn Romero Roofing) determination that the six-year-old roof had multiple flaws in its construction. Specifically, Romero's representative testified at trial that the torch roofing (bitumen membrane) had not been applied to the area surrounding the roof-top air conditioning unit, leaving a perimeter of approximately one foot of exposed roof around the air conditioner.

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Cite This Page — Counsel Stack

Bluebook (online)
942 So. 2d 97, 2006 WL 3093355, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hai-nam-chin-rest-part-v-b-b-const-lactapp-2006.