Loconte Partners, LLC v. Montgomery & Associates, Inc.
116 So. 3d 904
La. Ct. App.2013Background
- Loconte sued to repair leaks from an SPF roof installed by Montgomery under a 10‑year warranty that excludes certain causes.
- Leaks occurred at three preexisting sites unrelated to the SPF layer; Montgomery fixed some leaks but a dispute remained on others.
- Loconte added ERS (foam manufacturer) under LPLA and also asserted redhibition against all defendants.
- ERS moved for summary judgment arguing Loconte lacked evidence of defect; the court granted it four days before trial.
- The remainder of the case proceeded to trial against Montgomery and others; the jury found no liability against Montgomery and related entities, with claims dismissed with prejudice.
- Loconte sought JNOV and new trial, which were denied; the appellate court affirmed the judgments.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was summary judgment properly granted near trial? | Loconte contends 966(D) required ten days’ notice before trial and vacatur if not observed. | ERS argues no prejudice shown and de novo review supports judgment on the merits. | No reversible error; no prejudice shown and merits supported. |
| Should the jury have been instructed that a leaking roof is defective? | Loconte urged a strict-liability style instruction based on the warranty. | Defendants argue the contract is limited warranty; instruction inappropriate. | Trial court properly refused the requested instruction. |
| Did the trial court err in denying JNOV? | Loconte argues the verdict lacks sufficient support. | Defendants contend evidence supports the jury’s findings. | No; the verdict was supported by the evidence; JNOV denied. |
Key Cases Cited
- Environmental Operators, LLC v. Natco, Inc., 7 So.3d 1232 (La.App. 4 Cir. 2009) (966(D) timing can be discretionary depending on prejudice)
- Bell v. Uniroyal, Inc., 696 So.2d 268 (La.App. 4 Cir. 1997) (ten-day requirement not always fatal where no prejudice)
- Mitchell v. St. Paul Marine, 727 So.2d 1245 (La.App. 4 Cir. 1999) (distinguishing Bell; prejudice assessed on case facts)
- Johnson v. Canale, 769 So.2d 833 (La.App. 5 Cir. 2000) (prejudice and timing considerations in summary judgment)
- Strong’s Plumbing, Inc. v. Leon Angel Constructors, Inc., 796 So.2d 926 (La.App. 2 Cir. 2001) (summary judgment timing and prejudice considerations)
- Dede v. Tip’s Dev., L.L.C., 16 So.3d 526 (La.App. 4 Cir. 2009) (jury instructions reviewed for adequacy)
- Hebert v. McDaniel, 479 So.2d 1029 (La.App. 3 Cir. 1985) (strict liability considerations not applicable here)
- Stream v. LeJeune, 352 So.2d 714 (La.App. 3 Cir. 1977) (implied warranties and construction contract context)
- Goudeau v. Hill, 410 So.2d 338 (La.App. 4 Cir. 1982) (construction warranty considerations in similar context)