Schenker v. Bernard Lumber Co.

474 So. 2d 505, 1985 La. App. LEXIS 9278
CourtLouisiana Court of Appeal
DecidedAugust 6, 1985
DocketNo. CA-2660
StatusPublished
Cited by2 cases

This text of 474 So. 2d 505 (Schenker v. Bernard Lumber Co.) 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
Schenker v. Bernard Lumber Co., 474 So. 2d 505, 1985 La. App. LEXIS 9278 (La. Ct. App. 1985).

Opinion

WILLIAMS, Judge.

This is a suit in redhibition. Plaintiffs, William Schenker, Sr. (Schenker) and Residential Sales Corporation (Residential) are asking for recission and damages resulting from a sale. The case arises out of -the alleged unsuitability of a cedar sided plywood sold to Residential to be used on the exterior of a building project. Two types of plywood are in question: a four foot by eight foot ⅝ inch, five ply, western red cedar faced, reverse board and batten, mill certified siding; and a four foot by ten foot ⅝ inch, five ply, western red cedar faced, reverse board and batten APA certified siding. ITT-Rayonier, Inc. (ITT-Rayo-nier) through its Peninsular Plywood Division and Evans Products Co. (Evans), d/b/a Forest Products Group, manufactured the plywood which was bought by Bernard Lumber Company (Bernard) and sold to Residential, a corporation wholly owned and operated by William Schenker, Sr. The material was installed on a building owned by Schenker at 7901 Read Road in New Orleans, in May of 1979. In July of 1979, it was discovered that certain boards in the lot had begun to deteriorate and the plaintiffs contend that, because of the poor quality of the plywood, all of the plywood installed on the project must be removed and replaced at a substantial cost to the plaintiffs.

Plaintiffs filed suit on May 29, 1980 against ITT-Rayonier, Bernard, and Evans. Bernard reconvened against Residential for $48,801.89 due on .account for material used on the Read Road project of which $28,200.38 was for the plywood siding. These amounts were stipulated to by Residential. Additionally, Bernard filed a Third-Party demand against ITT-Rayonier, Evans, Lumbermen’s Merchandizing Corporation, Sequoia Supply, Inc., and several insurers. Sequoia and Lumbermen’s acted as middlemen in the sale of the plywood to Bernard.

ITT-Rayonier filed Third-Party claims against Bernard, Residential, the builder of 7901 Read Road, and Bon Marche Homes, the lessor of said property, also a Schenker corporation.

Prior to trial, the suit was settled as to Evans and Bernard’s claims against its insurers were severed for trial. Therefore, defendants at trial were ITT-Rayonier and Bernard. After the trial had concluded, but before the judgment had been rendered, the commissioner hearing the case resigned, and the case was reassigned, to a judge for the rendering of the judgment. The judge heard no testimony and rendered his decision based solely on the trial transcripts, the exhibits placed in the record and the post-trial memoranda submitted by counsel.

Judgment was rendered in April of 1984 in favor of plaintiffs against Bernard rescinding the sale of 130 mill-certified panels and 27 APA certified panels. Judgment was also rendered in favor of the plaintiffs against Bernard and ITT-Rayonier in soli-do for $50,736.00 in damages, with legal interest from date of judicial demand, constituting the replacement cost of off-grade panels including plumbing and electrical repairs and decking with the liability of Bernard limited to $3,538.55 with interest. ITT-Rayonier was held liable for $10,-000.00 in attorney’s fees with legal interest from date of judicial demand.

As to Bernard’s reconventional demand against Residential, the judgment was rendered in favor of Bernard for $48,801.89 with legal interest as provided by law, 5% of the principal and interest as attorneys’ fees and all costs directly attributable to the reconventional demand. Judgment was also rendered on the Third-Party demand of Bernard against ITT-Rayonier in favor of Bernard for the full amount for which Bernard is cast in the main demand. ITT-Rayonier was ordered to pay all costs not attributable to Bernard’s reconventional demand. All other claims and incidental demands were dismissed. ITT-Rayonier appeals, advancing eleven assignments of error. Schenker and Residential answer the appeal seeking an increase in the judgment. Bernard also appeals, but admits in brief that the appeal is “solely protective in na[508]*508ture” in that the lumber company is satisfied with the judgment.

Where the district court judge has decided a case upon the record made before another court, as is the case here, the scope of appellate review is broader than in the ordinary case. Since a trial judge who renders a decision solely on the record does not have the advantage of hearing, observing and, therefore, evaluating the witnesses, the rule of according great weight to his factual finding on appeal absent manifest error is inapplicable. Fabiano v. Bryan, 438 So.2d 719 (La.App.2d Cir.1983). We have, therefore, carefully reviewed the record and affirm the decision of the trial court as amended.

In reviewing the briefs of counsel, we have determined that there are three major issues on appeal: (1) whether Schenker had a right of action in redhibition; (2) whether ITT-Rayonier and Evans are co-debtors in solido; and (3) whether the monetary damages were proper in light of the expert testimony presented.

I.WILLIAM SCHENKER AS PROPER PARTY IN A REDHIBITORY ACTION

The defendants allege that the district court was in error in holding that Schenker had a right of action in redhibition. ITT-Rayonier and Bernard argue that an action in redhibition is available only to the buyer .of the defective thing and that Residential, not Schenker, was the buyer of the defective plywood. While acknowledging defendants’ well-reasoned but somewhat circular argument, we find that Schenker does have a redhibitory action. Schenker owns Residential as the sole shareholder. Additionally, Schenker is the owner of the Read Road project on which the plywood was placed. It is clear, therefore, that Schenker sustained damages in both capacities. We find that under the particular facts of this case there is no merit to the arguments presented by defendants and hold that Schenker does have a right of action in redhibition.

II. ITT-RAYONIER AND EVANS PRODUCTS AS CO-DEBTORS IN SOLI-DO

Prior to trial, the plaintiffs settle their claims against Evans, the manufacturer of 60 of the 284 4' x 10' panels used on the Read Road project. ITT-Rayonier argues that it is entitled to a pro rata reduction of any award granted to plaintiffs in accordance with La.Civ.C.Ann. 2203 prior to its repeal in 1984. We do not agree.

ITT-Rayonier and Evans each had a relationship with Bernard to furnish the company with plywood panels. The plywood manufacturers had no conventional relationship with each other as solidary obligees. Therefore, there is no release of ITT-Rayonier’s obligation of warranty under La.Civ.C.Ann. arts. 2476 and 2520.

Additionally, it was ITT-Rayonier’s burden to offer sufficient evidence at trial that the released co-defendant was a joint tortfeasor. Wall v. American Employers Ins. Co., 386 So.2d 79 (La.1980). In reviewing the record, we do not find that ITT-Rayonier has established that Evans was a joint tortfeasor and hence a solidary obli-gor. We conclude, therefore, that the determination of the trial court was proper.

III. DAMAGES

The district court awarded the plaintiffs $50,736.00, of which $3,539.55 represents the cost of 130 mill-certified panels and 27 APA certified panels, the sale of which the court rescinded. The balance of the award amounts to the cost of replacing the off-grade panels and doing other work occasioned thereby.

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Related

Bolner v. Daimler Chrysler Corp.
820 So. 2d 1252 (Louisiana Court of Appeal, 2002)
Schenker v. Bernard Lumber Co.
477 So. 2d 710 (Supreme Court of Louisiana, 1985)

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474 So. 2d 505, 1985 La. App. LEXIS 9278, Counsel Stack Legal Research, https://law.counselstack.com/opinion/schenker-v-bernard-lumber-co-lactapp-1985.