James Duplantis, Et Ux. v. Victor Miller

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

14-1070

JAMES DUPLANTIS AND KATHLEEN DUPLANTIS

VERSUS

VICTOR MILLER AND KENT ARMENTOR CONSTRUCTION, L.L.C.

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APPEAL FROM THE
THIRTY-FIRST JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON DAVIS, NO. C-249-13
HONORABLE C. STEVE GUNNELL, DISTRICT JUDGE

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JIMMIE C. PETERS
JUDGE

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Court composed of Jimmie C. Peters, Billy Howard Ezell, and James T. Genovese,
Judges.

AFFIRMED.

John J. Simpson
Stockwell, Sievert, Viccellio, Clements & Shaddock L.L.P.
P. O. Box 2900
Lake Charles, LA 70602
(337) 436-9491
COUNSEL FOR PLAINTIFFS/APPELLANTS:
James Duplantis
Kathleen Duplantis

Emile Joseph, Jr.
Allen & Gooch
2000 Kaliste Saloom Road, Suite 400
Lafayette, LA 70508-6180
(337) 291-1310
COUNSEL FOR DEFENDANT/APPELLEE:
Mueller Supply Co., Inc.

Paul D. Palermo
Blue Williams, LLP
3421 N. Causeway BoulEvard, Suite 900
New Orleans, LA 70002
(504) 831-4091
COUNSEL FOR DEFENDANT/APPELLEE:
Victor Miller

James F. DeRosier
125 W. School Street
Lake Charles, LA 70606-4902
(337) 474-0820
COUNSEL FOR DEFENDANT/APPELLEE:
Kent Armentor Construction, L.L.C.

PETERS, J.

The plaintiffs, James and Kathleen Duplantis, appeal the trial court‟s grant

of a summary judgment in favor of Mueller Supply Company, Inc., one of the

defendants in this litigation, dismissing all of their claims against that defendant.

For the following reasons, we affirm the trial court‟s grant of the summary

judgment.

DISCUSSION OF THE RECORD

This litigation arises from activities associated with a July 2011 contract

entered into between the plaintiffs and Victor Miller, wherein Mr. Miller agreed to

construct a residence on immovable property owned by the plaintiffs in Jennings,

Jefferson Davis Parish, Louisiana. The plaintiffs chose a metal roof manufactured

by Mueller Supply Company, Inc. (Mueller Supply) for their residence, and Mr.

Miller entered into a subcontract with Kent Armentor Construction, L.L.C.

(Armentor Construction) for the installation of the roof. When construction

defects prevented the plaintiffs from moving into their new home, they initially

brought a suit for damages against Mr. Miller and Armentor Construction, but later

added Mueller Supply as a defendant.

In their initial petition for damages filed on April 12, 2013, the plaintiffs

identified sixteen defects in the construction of the home, most of which were

related directly or indirectly to the defective installation of the roof by Armentor

Construction. With regard to Armentor Construction‟s liability, the plaintiffs

asserted that the company failed to install the roof in a good and workmanlike

manner in that it used materials which did not meet the plans and specifications of

the project, nor did the materials meet the specifications for the roof set forth by

Mueller Supply.

On August 13, 2013, the plaintiffs filed an amending petition, wherein it

asserted additional damage to the structure and added Mueller Supply as a party

defendant. As to their claim against Mueller Supply, the plaintiffs asserted that

before choosing a roof for their home, they searched the internet for the right

manufacturer. In doing so, they chose Mueller Supply based on the following

statement on Mueller Supply‟s website:

You can depend on Mueller and Mueller Assurance to provide
assistance with the installation of your metal roof. By choosing
Mueller as your single source supplier, you get skilled professionals to
measure your roof and we will refer a trained independent contractor
for the installation.

The plaintiffs further asserted in their amending petition that they informed Mr.

Miller of their choice of a Mueller Supply roof and that Mr. Miller subcontracted

with Armentor Construction for the roof installation. The plaintiffs‟ complaint

against Mueller Supply is that “[u]pon information and belief, at no time did

MUELLER offer guidance or assistance in the installation of its product[,]” and

that this failure on the part of Mueller Supply contributed to Armentor

Construction‟s failure to install the roof properly. This failure on the part of

Mueller Supply, according to the plaintiffs, resulted in a breach of promise by

Mueller Supply, or in the alternative, unjust enrichment of Mueller Supply at the

expense of the plaintiffs.

Mueller Supply initially responded to the amended petition on September 17,

2013, by filing peremptory exceptions of no cause and no right of action. In the

exceptions, Mueller Supply asserted that the plaintiffs did not purchase the roof

and, therefore, had no contract with it; and that because the claim was for defective

workmanship by Armentor Construction, the plaintiffs‟ claims were governed

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exclusively by the Louisiana Products Liability Act (LPLA), La.R.S. 9:2800.51 et

seq., and that the LPLA provided no right or cause of action against it.

At the November 12, 2013 hearing on the exceptions, Mueller Supply

argued to the trial court that the plaintiffs‟ allegations were that the roof was not

installed correctly and that the only allegation against Mueller Supply related to the

content of the website.1 Neither of these allegations, according to Mueller Supply,

gave rise to a cause or right of action against it. On the other hand, the plaintiffs

argued to the trial court that when Mueller Supply came to the property and

measured to determine how much roofing would be required, it became involved in

the project, and the LPLA did not preclude other causes of action against it. In

rejecting the exceptions, the trial court stated the following:

My position is I don‟t think the product liability statute precludes [the
plaintiffs] from bring any action against [Mueller Supply]. I believe
that because of the fact that [Mueller Supply] went out there and
measured the house [it] became involved. The advertisement then
applies at that time. I don‟t know how much it is so I am going to
deny [Mueller Supply‟s] exceptions of no right and no cause of
action.2

On November 27, 2013, Mueller Supply filed an answer to the plaintiffs‟

pleadings which basically raised the same defenses. The issue now before us

arises from Mueller Supply filing a motion for summary judgment on May 14,

2014.

At a June 24, 2014 hearing, the trial court rendered judgment granting

summary judgment in favor of Mueller Supply and dismissing all claims raised by

the plaintiffs against that defendant. Thereafter, the trial court executed two

written judgments addressing its decision of June 24, 2014. On July 1, 2014, the

1
Neither litigant offered evidence at the hearing.
2
The trial court did not sign a judgment to this effect until December 27, 2013.

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trial court executed the first written judgment, wherein it simply stated that it

granted Mueller Supply‟s motion for summary judgment. It executed the second

judgment on October 27, 2014, wherein it granted the motion and dismissed all of

the plaintiffs‟ claims against Mueller Supply.

In their appeal, the plaintiffs assert one assignment of error:

The Trial Court committed legal error by dismissing all the
claims of the Appellants in violation of LSA-C.C.P. Art. 966(F)(1)
which restricts a trial court from granting summary judgment on
issues not set forth in the Motion for Summary Judgment.

OPINION

It is well settled that an appellate court reviews a trial court‟s grant of

summary judgment using the same criteria that governs the trial court‟s decision in

granting the motion. Smitko v. Gulf S. Shrimp, Inc., 11-2566 (La. 7/2/12), 94 So.3d

750. Although amended multiple times in the last three years, summary judgment

proceedings are still favored and are “designed to secure the just, speedy, and

inexpensive determination of every action, except those disallowed by Article

969.” La.Code Civ.P. art. 966(A)(2). With regard to the evidentiary requirements

of a summary judgment action, La.Code Civ.P. art. 966(B)(2) provides in pertinent

part that:

The judgment sought shall be rendered forthwith if the
pleadings, depositions, answers to interrogatories, and admissions,
together with the affidavits, if any, admitted for purposes of the
motion for summary judgment, show that there is no genuine issue as
to material fact, and that mover is entitled to judgment as a matter of
law.

With regard to the burden of proof applicable to a summary judgment proceeding,

La.Code Civ.P. art. 966(C)(2) provides:

The burden of proof remains with the movant. However, if the
movant will not bear the burden of proof at trial on the matter that is
before the court on the motion for summary judgment, the movant‟s
burden on the motion does not require him to negate all essential
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elements of the adverse party‟s claim, action, or defense, but rather to
point out to the court that there is an absence of factual support for
one or more elements essential to the adverse party‟s claim, action, or
defense. Thereafter, if the adverse party fails to produce factual
support sufficient to establish that he will be able to satisfy his
evidentiary burden of proof at trial, there is no genuine issue of
material fact.

In granting summary judgment in favor of Mueller Supply, the trial court

stated the following at the end of the June 24, 2014 hearing:

All right. The Court - - there is no material issue of fact in this
case „cause both parties have agreed on what the - - Mr. Duplantis
read and what he thought. So there‟s no issue of fact here, and the
Court cannot find with those facts being undisputed any cause of
action or any claim or remedy against Mueller, all right, at this time,
because he did not ask for assistance, his contractor did not ask for
assistance, and I find that there is no remedy under law for the
Duplantises against Mueller at this time, and I‟m granting the motion
for summary judgment.

With regard to the judgment a trial court may issue in considering a motion

for summary judgment, La.Code Civ.P. art. 966(F)(1) (emphasis added) provides

that “[a] summary judgment may be rendered or affirmed only as to those issues

set forth in the motion under consideration by the court at that time.” On appeal,

the plaintiffs‟ primary argument is that the trial court rendered judgment

dismissing causes of action raised by them but not addressed in Mueller Supply‟s

motion for summary judgment. Specifically, the plaintiffs argue that in its motion

for summary judgment, Mueller Supply merely repeated its argument from its

peremptory exceptions that the plaintiffs‟ sole remedy is in the LPLA. We find no

merit in this argument.

Mueller Supply‟s motion for summary judgment states that “for the reasons

more fully set forth in the exhibits attached hereto and the attached memorandum,

it is entitled to a summary judgment[.]” The attached exhibits are:

A. Original Petition filed by the Petitioners;

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B. Amended Petition filed by the Petitioners;

C. Discovery responses from Petitioner;

D. Responses to Request for Admission of Fact from Petitioners;
and

E. Deposition excerpts from the deposition of Petitioner, James
Duplantis.

In its memorandum, Mueller Supply summarized the issues in the litigation

to be as follows:

By way of an amended petition (attached as Exhibit B to the
motion), Duplantis named Mueller as a defendant maintaining that
Mueller was responsible for the defective construction of the roof
because it failed to supervise and/or provide assistance to the roofing
contractor in the installation of the roof. As addressed below, Mueller
contends that it was not involved in the construction of the residence,
did not control or provide oversight in connection with the installation
of the metal roof, and absent any allegation that the metal roof itself is
defective, owes no obligation to the Petitioners.

Both litigants acknowledge that the LPLA “establishes the exclusive theories

of liability for manufacturers for damage caused by their products.” La.R.S.

9:2800.52. They also acknowledge that the underlying claim in this litigation is

not one for damages caused by Mueller Supply‟s product, but a claim for defective

workmanship in installing the roof; and that the LPLA does not eliminate other

causes of action against the manufacturer arising directly from its actions,

including claims of failure to perform and unjust enrichment. Triche v.

McDonald’s Corp., 14-318 (La.App. 5 Cir. 10/29/14), __ So.3d __; Lavergne v.

Am.’s Pizza Co., LLC, 02-889 (La.App. 3 Cir. 2/5/03), 838 So.2d 845.

Mueller Supply asserted, and the trial court agreed, that the plaintiffs cannot

bear the burden of proof on those issues arising outside the LPLA, because no

contractual relationship existed between it and the plaintiffs, and, therefore, it

owed no performance obligation; and that reliance on the website posting does not

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establish liability on the part of Mueller Supply, because neither the plaintiffs, Mr.

Miller, nor anyone from Armentor Construction requested assistance with the

installation of the roof.

Thus, while not specifically identifying the asserted causes of action by

name, Mueller Supply did raise them in the motion for summary judgment, and the

trial court did not violate the provisions of La.Code Civ.P. art. 966(F)(1) in

addressing and disposing of them.

Nor do we find any merit in the plaintiffs‟ argument that the trial court‟s

ruling on the peremptory exceptions disposed of the issues raised in the motion for

summary judgment. In that ruling, the trial court merely concluded that the LPLA

was not the plaintiffs‟ exclusive remedy, but the trial court clearly did not affirm

the viability of any other asserted causes of action. Rather, the trial court left those

issues to a later day, when it would have a complete record for consideration of

those issues. That day came with the consideration of this motion for summary

judgment.

With regard to the merits of the ruling itself, we note that the plaintiffs‟

memorandum and exhibit establish that both of their asserted causes of action

arises from the assurance language of the website, as previously set out in this

opinion. This language, according to the plaintiffs, caused them to believe that

Mueller Supply would provide supervision of the installation of the roof itself.

However, a clear reading of the language on the website establishes that Mueller

Supply assumed no supervisory authority in a roof installation project, it merely

offered “assistance.” In fact, Mueller Supply did provide assistance by measuring

the roof and providing Armentor Construction with an estimate of the amount of

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roofing material that would be needed. 3 Past that point, neither the plaintiffs, Mr.

Miller, nor a representative of Armentor Construction sought any assistance from

Mueller Supply in the installation of the roof. The plaintiffs‟ expectation that a

representative of Mueller Supply would remain on site and supervise the

installation of the roof is not supported by the content of the website. 4

DISPOSITION

For the foregoing reasons, we affirm the trial court‟s grant of summary

judgment in favor of Mueller Supply Company, Inc., and against James and

Kathleen Duplantis, dismissing all of the claims of James and Kathleen Duplantis

against Mueller Supply Company, Inc. We assess all costs of this appeal to James

and Kathleen Duplantis.

AFFIRMED.

3
In his deposition testimony, Mr. Duplantis suggested that he was concerned that he had
purchased more roofing material than needed, but he presented no evidence to support this
concern. In fact, he acknowledged that he had no evidence other than his personal concern, he
was not present on the construction site during the measuring process, and he never made any
effort to see if that which was purchased was in fact delivered.
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We also note that while the plaintiffs assert in their pleadings that Armentor
Construction was selected from a list of trained independent contractors approved by Mueller
Supply, the summary judgment evidence does not support that factual assertion.
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