288 So.3d 179
La. Ct. App.2019Background
- Bottinelli owned commercial property whose roof was replaced in Dec. 2006 by Roof Technologies using a Johns Manville (JM) roofing system covered by a 15‑year guarantee to repair leaks.
- Bottinelli alleges the roof leaked immediately and that Roof Tech, at JM’s direction, made repeated repairs that never stopped the leaks; Bottinelli contends JM knowingly avoided replacement until the guarantee expired.
- Bottinelli filed suit on Apr. 26, 2016 (about 10 years after installation); Roof Tech’s claims were dismissed on prescription and that judgment was not appealed.
- JM filed exceptions of prescription/peremption; after leave to amend fraud claims, Bottinelli filed a second amended petition alleging breach of contract, fraud, products‑liability, and UDAP claims.
- The district court granted JM’s exception of prescription and dismissed all claims against JM on Feb. 19, 2019; Bottinelli appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether breach‑of‑contract claim is timely | Breach of JM’s 15‑year guarantee continues while roof still leaks; suit filed within 10 years | Claim sounds in redhibition (defective product sale) and thus prescribes in one year from discovery | Court held claim sounds in redhibition and is prescribed (one‑year rule applies) |
| Whether fraud was pled with particularity to interrupt prescription (contra non valentem/continuing tort) | JM and its vendor repeatedly represented repairs would be permanent and concealed that roof was irreparable, tolling prescription | Fraud allegations are conclusory, fail to identify JM agents or specific misrepresentations; no fiduciary duty shown | Court held fraud not pled with requisite particularity; contra non valentem and continuing‑tort doctrines do not save claims |
| Whether discovery evidence (repair logs) and plaintiff’s 2012 demand preclude tolling | Plaintiff contends it only learned JM’s knowledge in 2018 via discovery responses | JM introduced 2012 demand letter and repair logs showing owner was told membrane was failing, undermining plaintiff’s concealment claim | Court found no clear error that plaintiff was not prevented from suing; tolling not established |
| Whether trial court’s bench comments about JM’s good‑faith repairs constitute reversible error | Bench comments mischaracterized evidence and prejudiced plaintiff | Reasons for judgment are not part of the judgment and are not reversible error | Court affirmed that comments do not alter or invalidate the judgment |
Key Cases Cited
- Rando v. Anco Insulations, Inc., 16 So.3d 1065 (La. 2009) (standard of review for prescription when evidence is introduced)
- Trust for Melba Margaret Schwegmann v. Schwegmann, 51 So.3d 737 (La. App. 5 Cir. 2010) (burden shifts where prescription is evident from the pleadings)
- Parry v. Administrators of Tulane Educ. Fund, 828 So.2d 30 (La. App. 4 Cir. 2002) (the character of the action in the pleadings determines the prescriptive period)
- Stewart Interior Contractors, L.L.C. v. MetalPro Indus., L.L.C., 130 So.3d 485 (La. App. 4 Cir. 2014) (sale‑based defects are often redhibition and subject to one‑year prescription)
- Marin v. Exxon Mobil Corp., 48 So.3d 234 (La. 2010) (explaining contra non valentem exceptions to prescription)
- McCarthy v. Evolution Petroleum Corp., 180 So.3d 252 (La. 2015) (fraud by silence requires pleading a duty to disclose or confidential relationship)
- Wooley v. Lucksinger, 61 So.3d 507 (La. 2011) (reasons for judgment are not part of the judgment and do not control appellate review)