Bottinelli Real Estate, L.L.C. v. Johns Manville, Inc. and Roof Technologies, Inc.

BOTTINELLI REAL ESTATE, * NO. 2019-CA-0619
L.L.C.
*
VERSUS COURT OF APPEAL
*
JOHNS MANVILLE, INC. AND FOURTH CIRCUIT
ROOF TECHNOLOGIES, INC. *
STATE OF LOUISIANA
*******

APPEAL FROM
CIVIL DISTRICT COURT, ORLEANS PARISH
NO. 2016-04176, DIVISION “A”
Honorable Ellen M. Hazeur, Judge
******
Judge Joy Cossich Lobrano
******
(Court composed of Judge Terri F. Love, Judge Joy Cossich Lobrano, Judge
Tiffany G. Chase)

David A. Binegar
Tiffany R. Christian
BINEGAR CHRISTIAN LLC
4902 Canal Street, Suite 301
New Orleans, LA 70119

COUNSEL FOR PLAINTIFF/APPELLANT

Mark A. Cunningham
Tarak Anada
Allison B. Kingsmill
Thomas E. Slattery
JONES WALKER, L.L.P
201 St. Charles Avneue, Suite 4900
New Orleans, LA 70170

COUNSEL FOR DEFENDANT/APPELLEE

AFFIRMED

DECEMBER 27, 2019

Plaintiff/appellant, Bottinelli Real Estate, L.L.C. (“Bottinelli”), appeals the

February 19, 2019 judgment of the district court, which granted an exception of

prescription in favor of defendant/appellee, Johns Manville, Inc. (“JM”), and

dismissed all claims against JM. For the reasons set forth in this opinion, we

affirm.

Bottinelli owned commercial property that sustained roof damage in

Hurricane Katrina and contracted with Roof Technologies, Inc. (“Roof Tech”) to

replace the roof. In December 2006, Roof Tech recommended and installed a roof

manufactured by JM. JM provided a 15-year guarantee on the roof (the

“guarantee”),1 which states, in relevant part, that:

JM will pay for the materials and labor required to promptly repair the
Roofing System to return it to a watertight condition if leaks occur
due to: ordinary wear and tear, or deficiencies in any or all of the
component materials of the Roofing System, or workmanship
deficiencies in the application of the Roofing System.

1
The commercial property at issue spans two buildings, and there is a separate guarantee on the
roof of each building. None of Bottinelli’s petitions alleges any difference between the
guarantees or which repairs were made to which roof. For simplicity in this opinion, we refer
collectively to the “roof” and the “guarantee.”

1

According to Bottinelli, the roof leaked immediately upon completion of

installation, and though Roof Tech and other roofers made repeated repairs at JM’s

direction, the roof has always continued to leak, causing ongoing damage to the

property. Bottinelli claims that JM, through Roof Tech, misrepresented to

Bottinelli that the roof could be fixed and concealed from Bottinelli that the

condition of the roof was irreparable, and needed to be replaced. Bottinelli argues

that JM was trying to make minimal, temporary repairs until the 15-year guarantee

expired to avoid having to replace the roof.2

On April 26, 2016, nearly 10 years after the roof was installed, Bottinelli

filed its original petition for damages against Roof Tech and JM. On September 27,

2016, Bottinelli filed a first supplemental and amending petition. On August 17,

2017, Roof Tech filed a motion for summary judgment and/or exception of

prescription. On November 6, 2017, the district court rendered judgment granting

Roof Tech’s exception of prescription and dismissing all claims against Roof Tech.

This ruling was not appealed.

On January 16, 2018, JM filed exceptions of prescription and peremption,

which the district court denied on June 29, 2018. On July 13, 2018, JM filed an

application for supervisory writ in this Court. On October 3, 2018, this Court

2
JM raises numerous arguments on appeal with respect to the identity and capacity of plaintiffs.
In the original petition, the only plaintiff was Bottinelli. The first supplemental and amended
petition added as co-plaintiffs Bottinelli’s part-owners, Richard and Doris Kuntz, who also
joined in the second supplemental and amending petition. The guarantee on the roof was issued
to “Richard Kuntz” who was identified as “Building Owner,” while Bottinelli appears nowhere
in the document. The second amended petition contains an allegation that Bottinelli is a third
party beneficiary of the contract with Roof Tech to replace the roof. There is no allegation that
Bottinelli is a third party beneficiary of the guarantee. Bottinelli was the only party to file a
motion for appeal. Neither Richard nor Doris Kuntz filed a motion for appeal. Because we affirm
the district court judgment on other grounds, we do not reach JM’s arguments on this issue.

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granted the writ and permitted Bottinelli leave to amend the petition to state its

fraud claims with particularity.

On November 5, 2018, Bottinelli filed a second supplemental and amended

petition, alleging breach of contract, fraud, Louisiana Products Liability Act, and

Louisiana Unfair Trade Practices Act claims. On December 12, 2018, JM again

urged an exception of prescription, and the district court held a hearing on

February 8, 2019. On February 19, 2019, the district court rendered judgment

granting the exception of prescription and dismissing all claims against JM.3

Bottinelli appeals this judgment.

This Court has articulated the standard of review, relative to peremptory

exceptions of prescription, as follows:

Ordinarily, a party asserting a peremptory exception of prescription
bears the burden of proof. Trust for Melba Margaret Schwegmann v.
Schwegmann, 09-968, p. 8 (La. App. 5 Cir. 9/14/10), 51 So.3d 737,
742. However, if prescription is evident from the face of the
pleadings, the plaintiff will bear the burden of showing an action has
not prescribed. Id. If evidence is introduced at the hearing on the
peremptory exception of prescription, the district court’s findings of
fact are reviewed under the manifest error-clearly wrong standard of
review. Rando v. Anco Insulations, Inc., 08-1163, p. 20 (La. 5/22/09),
16 So.3d 1065, 1082. If there is [ ] an absence of evidence, the
exception of [ ] prescription must be decided upon the properly
pleaded material allegations of fact asserted in the petition, and those
alleged facts are accepted as true. Trust for Melba Margaret
Schwegmann, 51 So.3d at 742. Further, in reviewing a peremptory
exception of prescription, appellate courts strictly construe the statutes
against prescription and in favor of the claim. Id. Of the possible
constructions of a prescriptive or preemptive statute, the one that
maintains enforcement of the claim or action, rather than the one that
bars enforcement should be adopted. Rando, 16 So.3d at 1083.

3
In this judgment, the district court found JM’s exceptions of no cause of action and peremption
moot.

3

Ames v. Ohle, 11-1540, pp. 5-6 (La. App. 4 Cir. 5/23/12), 97 So.3d 386,

390-91, decision clarified on reh’g (7/11/12).

Bottinelli sets forth on appeal three assignments of error, as follows:

1. The trial court erred in dismissing all causes of action with
prejudice as a result of JM’s Exception of Prescription, as
Bottinelli sued for breach of contract relating to JM’s alleged
violation of the roofing Guarantees, demonstrated by JM’s failure
to repair the roofing systems sufficiently to bring them to a leak-
free condition—a fact that continues to this day.

2. The trial court erred by holding that Bottinelli did not sufficiently
allege fraud in its Second Supplemental and Amended Petition,
thereby subjecting its tort-based causes of action to JM’s
Exception of Prescription; and

3. The trial court erred in substituting its interpretation of the term
“failing,” as that term appears in the internal logs between JM and
its repair vendors, who told JM that the roofing system was
“failing.” While the trial court held that just because the roofing
system was “failing” did not mean that it could not be repaired,
and therefore sustained JM’s Exception of Prescription.

Bottinelli’s first assignment of error concerns its breach of contract claim,

alleging that JM failed to “make good” on the guarantee to bring the roof to non-

leaking condition. Bottinelli argues that its breach of contract claim is not

prescribed (1) because Bottinelli filed suit within 10 years of the roof’s

completion; and (2) because the 15-year guarantee on the roof still has not expired.

JM argues that Bottinelli waived these arguments in the district court, by not

raising same in its opposition to JM’s exception of prescription. JM is correct that,

while Bottinelli filed an opposition to JM’s exception, that opposition contained no

law or argument refuting that the contract claim had prescribed. “Jurisprudence

provides a ‘longstanding general rule that issues not submitted to the trial court for

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decision will not be considered for the first time on appeal.’ ” Hurst v. Dep’t of

Police, 14-0119, p. 6 (La. App. 4 Cir. 7/23/14), 146 So.3d 857, 860 (quoting Jones

v. Capitol Enterprises, Inc., 11-0956, pp. 18-19 (La. App. 4 Cir. 5/9/12), 89 So.3d

474, 487). We recognize, regardless, that JM argued in its exception that the breach

of contract claim is actually a redhibition claim, which has prescribed; thus, the

district court considered this issue.

“In determining the applicable prescriptive period, we are guided by the

well-settled principle that ‘[t]he character of an action disclosed in the pleadings

determines the prescriptive period applicable to that action.’” Parry v.

Administrators of Tulane Educ. Fund, 02-0382, p. 7 (La. App. 4 Cir. 9/4/02), 828

So.2d 30, 35 (quoting Starns v. Emmons, 538 So.2d 275, 277 (La. 1989)

(collecting cases)). A breach of contract claim has a prescriptive period of 10

years. See La. C.C. art. 3499. An action for redhibition prescribes in one year from

the date the defect is discovered by the buyer. La. C.C. art. 2534. A “breach of

contract claim based upon the sale of an allegedly defective product would be

founded in redhibition and subject to the one year prescriptive period.” Stewart

Interior Contractors, L.L.C. v. MetalPro Indus., L.L.C., 13-0922, pp. 5-6 (La. App.

4 Cir. 1/8/14), 130 So.3d 485, 489.

According to the second supplemental and amended petition, Bottinelli

knew immediately in 2006 that the roof leaked, and JM dispatched a repair crew

under the guarantee. Bottinelli reported other leaks to JM over the next 10 years,

and JM dispatched a repair crew under the guarantee each time. According to the

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petition, the roof could not be repaired. Bottinelli’s claim is that the roof is

defective. We agree with JM’s argument that the substance of Bottinelli’s claim

sounds in redhibition, subject to a one year prescriptive period, not a ten-year

prescriptive period. This assignment lacks merit.

Bottinelli’s second assignment of error addresses whether its petition stated

allegations of fraud with sufficient particularity so as to interrupt prescription on its

tort-based causes of action. Bottinelli contends that, by alleging fraud against JM,

prescription is interrupted on the product liability and unfair trade practices claims

under the theory of contra non valentem and the continuing tort doctrine.

Generally, a civil cause of action for fraud is subject to a ten year prescriptive

period, while “a fiduciary’s simple negligence should be treated as an offense

subject to a one year prescriptive period.” Ames, 11-1540, p. 8, 97 So.3d at 392

(quotation omitted). Delictual actions, including claims under the Louisiana

Products Liability Act, are subject to a one year prescriptive period. Stewart, 13-

0922, p. 5, 130 So.3d at 489 (citing La. C.C. 3492; La. R.S. 9:2800.51 et seq.). A

claim under the Louisiana Unfair Trade Practices Act is subject to a one year

prescriptive period, which is peremptive. Dominion Expl. & Prod., Inc. v. Waters,

07-0386, p. 7 (La. App. 4 Cir. 11/14/07), 972 So.2d 350, 356 (citing La. R.S.

51:1409(E))(other citations omitted).

“La. C.C.P. article 856 states that when pleading fraud, the circumstances

constituting fraud shall be alleged with particularity.” 831 Bartholomew

Investments-A, L.L.C. v. Margulis, 08-0559, p. 10 (La. App. 4 Cir. 9/2/09), 20

6

So.3d 532, 538. Allegations that a defendant’s actions were “fraudulent” are

“insufficient to set forth a cause of action under La. C.C. article 1953” if they are

“conclusory.” Id. Where “[n]o specific people are named and no particular

activities are identified” a plaintiff has “failed to allege fraud with sufficient

particularity.” Hawkins v. Willow Inc., 12-0160, p. 6 (La. App. 5 Cir. 10/16/12),

102 So.3d 900, 903. To “state a cause of action in fraud from silence or

suppression of the truth, there must be a duty to speak or disclose information.”

Becnel v. Grodner, 07-1041, p. 4 (La. App. 4 Cir. 4/2/08), 982 So.2d 891, 894.

“Although there is no general duty to speak, a duty to speak or disclose may arise

where there exists a fiduciary relationship between the parties.” Id. A “petition

fails to articulate a cause of action for fraud by silence” where the “petition is

devoid of allegations of any relationship of confidence with the defendants.”

McCarthy v. Evolution Petroleum Corp., 14-2607, p. 10 (La. 10/14/15), 180 So.3d

252, 258.

Bottinelli’s petition does not name any particular person at JM who made

any representation to him. Rather, it alleges that Roof Tech, acting at JM’s behest,

made representations at unspecified times that the roof could be repaired and that

the repairs would be “permanent.” Bottinelli fails to explain with any facts or legal

authority why any alleged fraudulent statements by Roof Tech employees can be

attributed to JM. Bottinelli also alleges that JM withheld information within its

knowledge that the roof was failing and could not be repaired. Bottinelli argues

that its relationship with JM was such that JM had a duty to disclose that the roof

7

could not be repaired, but we find no law imposing a fiduciary relationship in a

sale and service guarantee like the one at issue in this case. Bottinelli has now

amended its petition twice, and this Court granted writs, allowing Bottinelli leave

to plead its fraud allegations with particularity. Bottinelli has failed to so amend.

We find that its fraud allegations are merely conclusory and lack sufficient

particularity.

With respect to contra non valentem, Bottinelli claims that it was lulled into

inaction by JM’s continued service calls and temporary repairs. The jurisprudential

doctrine of contra non valentem is an exception to the statutory rule that

“prescription runs against all persons unless exception is established by

legislation.” Marin v. Exxon Mobil Corp., 09-2368, p. 11 (La. 10/19/10), 48 So.3d

234, 245 (quoting La. C.C. art. 3467). The Louisiana Supreme Court has

“recognized four factual situations” in which contra non valentem applies to

prevent prescription from running:

(1) where there was some legal cause which prevented the courts or
their officers from taking cognizance of or acting on the plaintiff’s
action;

(2) where there was some condition coupled with the contract or
connected with the proceedings which prevented the creditor from
suing or acting;

(3) where the debtor himself has done some act effectually to prevent
the creditor from availing himself of his cause of action; or

(4) where the cause of action is neither known nor reasonably
knowable by the plaintiff even though plaintiff's ignorance is not
induced by the defendant.

8

Id., 09-2368, p. 12, 48 So.3d at 245. Bottinelli seeks to invoke the third category.

“This category has been applied to cases wherein defendant has concealed the fact

of the offense or has committed acts (including concealment, fraud,

misrepresentation, or other “ill practices”) which tend to hinder, impede, or prevent

the plaintiff from asserting his cause of action, as long as plaintiff’s delay in

bringing suit is not willful or the result of his own negligence.” Id., 09-2368, p. 23,

48 So.3d at 251-52.

Bottinelli claims that “JM failed to disclose the fact that the roofing system

was failing to Bottinelli because JM did not want to incur the costs of replacing the

entire roofing system” and that “Bottinelli was not aware of JM’s knowledge that

the roofing system could not be repaired until April 2018, when JM finally

answered Bottinelli’s discovery requests.” As discussed, Bottinelli has failed to

allege fraud with particularity. Moreover, exhibits introduced on the trial of the

exception refute Bottinelli’s contention that either JM’s representations or failure

to disclose prevented Bottinelli from filing suit. JM introduced, in support of its

exception, Bottinelli’s counsel’s demand letter to Roof Tech, dated October 12,

2012, more than three years before filing suit, wherein counsel insists that repairs

“have been to no avail” and the roof must be replaced. Bottinelli also introduced a

repair log produced by JM in discovery, stating that Roof Tech told “owner” that

the roof membrane was failing. We find no clear error in the district court’s finding

that contra non valentem did not apply.

9

Bottinelli makes a related argument that JM’s allegedly fraudulent

representations that the roof was reparable invoke the continuing tort doctrine. The

continuing tort doctrine is another exception to the running of prescription, which

is implicated “[w]hen damaging conduct is of a continuous nature, [such that]

prescription does not begin to run until the date of the last harmful act.” Scott v.

Zaheri, 14-0726, p. 11 (La. App. 4 Cir. 12/3/14), 157 So.3d 779, 786. According to

Bottinelli, JM’s representations are ongoing, have not abated, and that prescription

has not begun to run. However, as we explain above, Bottinelli fails to allege who

at JM made representations or when; its fraud allegations lack sufficient

particularity to form the basis of an actionable claim or to toll prescription.4 This

assignment is without merit.

Lastly, addressing the third assignment of error, Bottinelli complains of the

district court’s comments from the bench that JM was trying in good faith to repair

the leaks and “failing” roofing systems. Bottinelli’s argument, that these statements

constitute reversible error, “fail[s] to take into account the well-settled rule that the

district court’s oral or written reasons for judgment form no part of the judgment,

and that appellate courts review judgments, not reasons for judgment.” Wooley v.

Lucksinger, 09-0571, p. 77 (La. 4/1/11), 61 So.3d 507, 572 (citations omitted).

“[R]easons for judgment are merely an explication of the trial court’s

4
Bottinelli’s ongoing misrepresentation argument is likewise distinguishable from allegations of
negligent failure to abate damage from a roof leak, raised in cases where the continuing tort
doctrine was found to apply. Contrast FIE, LLC v. New Jax Condo Ass’n, Inc., 16-0843, pp. 28-
30 (La. App. 4 Cir. 2/21/18), 241 So.3d 372, 394-95, writ denied, 18-0449 (La. 5/25/18), 243
So.3d 544, and writ denied, 18-0446 (La. 5/25/18), 243 So.3d 545 (collecting cases). Bottinelli
raises no such negligence argument on appeal.

10

determinations. They do not alter, amend, or affect the final judgment being

appealed....” Id., 09-0571, pp. 77-78, 61 So.3d at 572. While a court of appeal is

entitled to use reasons for judgment “to gain insight into the district court’s

judgment” – to the extent such “reasons may, or may not, have been helpful in that

regard” – “the job of the appellate court [is] to review the district court’s judgment,

not its reasons for judgment.” Id., 09-0571, p. 78, 61 So.3d at 572. We, thus, find

no basis on which to deem the district court’s statements reversible error.

Accordingly, for the reasons set forth herein, we affirm the judgment of the

district court.

AFFIRMED

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