Lucien H. Dauterive and Laura A. Dauterive Versus Tile Redi, LLC and Tile Redi Manager, Inc. ( 2020 )

LUCIEN H. DAUTERIVE AND NO. 20-CA-96
LAURA A. DAUTERIVE
FIFTH CIRCUIT
VERSUS
COURT OF APPEAL
TILE REDI, LLC AND TILE
REDI MANAGER, INC. STATE OF LOUISIANA
ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON, STATE OF LOUISIANA
NO. 714-155, DIVISION "L"
HONORABLE DONALD A. ROWAN, JR., JUDGE PRESIDING
October 05, 2020
JUDE G. GRAVOIS
JUDGE
Panel composed of Judges Susan M. Chehardy,
Jude G. Gravois, and Robert A. Chaisson
AFFIRMED
JGG
SMC
RAC
COUNSEL FOR PLAINTIFF/APPELLANT,
LUCIEN H. DAUTERIVE AND LAURA A. DAUTERIVE
Stephen J. Caire
COUNSEL FOR DEFENDANT/APPELLEE,
TILE REDI, LLC, TILE REDI MANAGER, INC.,
AND MARYLAND CASUALTY COMPANY
Jack E. Truitt
Lou Anne Milliman
Michelle Mayne Davis
Nancy N. Butcher
Lauren A. Duncan
GRAVOIS, J.
Plaintiffs/appellants, Lucien and Laura Dauterive, appeal the trial court’s
granting of partial summary judgment in favor of defendants/appellees, Tile Redi,
LLC, Tile Redi Manager, Inc., and Maryland Casualty Company. For the reasons
that follow, we affirm.
FACTS AND PROCEDURAL HISTORY
The underlying facts in this matter were set forth in a prior appeal:
In the process of rebuilding their home following Hurricane
Katrina, plaintiffs purchased a custom shower pan for their shower
enclosure from Tile Redi on March 3, 2007 and installed it themselves
according to the manufacturer’s drawings and specifications provided
by Tile Redi. Four years later, on April 29, 2011, plaintiffs
discovered that the shower pan had been leaking through pinholes in
the side of the pan. The leak caused water damage to nearby wood,
attracting termites and compounding the damage. Plaintiffs sent
photographs of the damage to Tile Redi, complaining that a
manufacturing defect of the shower pan was the cause of the damage.
Thereafter, Tile Redi allegedly accepted the shower pan for repairs,
but did not resolve the complaint before plaintiffs filed suit on April
26, 2012, in which they raised an action in redhibition, alleging that
the pinholes in the shower pan constituted a redhibitory defect. They
sought rescission of the sale, restitution of the purchase price, and
damages in excess of $50,000 for repairs of the property, relocation
expenses, and emotional distress. They also sought costs and
attorney’s fees.
Dauterive v. Tile Redi, LLC, 17-606 (La. App. 5 Cir. 4/25/18), 246 So.3d 802, 804.
Pertinent to this appeal, trial on the merits was set for September 11, 2019.
However, on July 11, 2019, Tile Redi made the following written offer of
judgment to plaintiffs:
Pursuant to the provisions and benefits of Article 970 of the
Louisiana Code of Civil Procedure, an offer of judgment, in the
amount of $25,000.00, is hereby made on behalf of defendants, Tile
Redi, LLC, Tile Redi Manager, Inc., and Maryland Casualty
Company, without any admission of liability and is made for the
purpose of settling all claims between your clients, Lucien H.
Dauterive and Laura A. Dauterive, and defendants, Tile Redi, LLC,
Tile Redi Manager, Inc., and Maryland Casualty Company, in
connection with the above captioned litigation. Furthermore, the offer
of $25,000.00 shall be exclusive of costs, interest, attorney’s fees, and
any other amount which may be awarded pursuant to statute or rule.
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Plaintiffs accepted the offer of judgment on July 18, 2019, and on July 24,
2019, they filed a Motion for Judgment on the Offer of Judgment. The trial court
subsequently granted the Motion for Judgment on the Offer of Judgment.
On August 27, 2019, Tile Redi filed a “Motion for Partial Summary
Judgment on Attorney’s Fees, Costs, and Judicial Interest.” Tile Redi asserted that
plaintiffs are not entitled to recover attorney’s fees, costs, and judicial interest in
this matter because there has been no finding or admission of liability.
Referencing Hendrick v. Patterson, 47,668 (La. App. 2 Cir. 1/16/13), 109 So.3d
475, writ denied, 13-0670 (La. 4/26/13), 112 So.3d 849, Tile Redi argued that
plaintiffs are seeking attorney’s fees pursuant to La. C.C. art. 2545, a redhibition
statute; however, attorney’s fees are only recoverable pursuant to La. C.C. art.
2545 when there has been a liability determination. Tile Redi asserted that there
has been no liability determination in this case since the offer of judgment clearly
states that it did not constitute an admission of liability. Further, the offer of
judgment clearly states that the offer of judgment was exclusive of costs, interest,
and attorney’s fees. Tile Redi included, in support, an email it sent to plaintiffs’
counsel prior to their filing of the Motion for Judgment on the Offer of Judgment
that stated that the offer of judgment was for “$25,000 and no more.” Finally, Tile
Redi claimed that costs and judicial interest should only be awarded to a prevailing
party and are not owed here.
In opposition to the motion for partial summary judgment, plaintiffs argued
that this Court’s holding in Dauterive, supra, is the law of the case.1 Plaintiffs also
1
In this argument, plaintiffs referenced the following excerpt from Dauterive:
Tile Redi asserted, and the district court agreed, that plaintiffs’ claim was
prescribed pursuant to La. C.C. art. 2534(A) (1). By contrast, plaintiffs argued that
because Tile Redi was both the seller and the manufacturer of the shower pan, by
operation of La. C.C. art. 2545, Tile Redi is deemed to have knowledge of redhibitory
defects, and La. C.C. art. 2534(B) governs their claim. ... Upon our de novo review, we
conclude the district court erred in concluding otherwise.
Id. at 805.
See discussion of this issue infra.
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filed “Plaintiffs’ Notice of Attorney Fees Claimed” to give notice that the total
costs, expenses, and attorney’s fees they would claim at the hearing on the partial
motion for summary judgment is $115,627.95.
A hearing on the motion for partial summary judgment was held on
November 18, 2019. After taking the matter under advisement, the trial court
signed a written judgment that same day granting Tile Redi’s motion for partial
summary judgment, which judgment stated that plaintiffs are not entitled to
recover attorney’s fees, costs, and judicial interest. The judgment further
dismissed the matter in its entirety with prejudice.
This appeal followed. On appeal, plaintiffs argue that the trial court erred in
granting Tile Redi’s motion for partial summary judgment because Tile Redi failed
to meet its burden of showing that it was entitled to judgment as a matter of law.
Specifically, plaintiffs argue that: 1) Tile Redi failed to demonstrate that the
express terms of the offer of judgment excluded any requirement that it pay costs,
attorney’s fees, interest, or any other amounts allowed by statute or rule; 2) Tile
Redi failed to demonstrate as a matter of law that plaintiffs were not entitled to
recover costs, attorney’s fees, interest, or any other amounts allowed by statute or
rule because there has been no finding or admission of liability, and that Tile Redi
erroneously asserted that Hendrick was directly on point; and 3) Tile Redi failed to
cite any authority for or provide any argument in support of their assertion that
costs and judicial interest should be awarded only to a prevailing party.2
LAW AND ANALYSIS
“After an opportunity for adequate discovery, a motion for summary
judgment shall be granted if the motion, memorandum, and supporting documents
show that there is no genuine issue as to material fact and that the mover is entitled
2
Because the assignments of error are interrelated, we consider them together.
20-CA-96 3
to judgment as a matter of law.” La. C.C.P. art. 966(A)(3). “The burden of proof
rests with the mover. Nevertheless, if the mover will not bear the burden of proof
at trial on the issue that is before the court on the motion for summary judgment,
the mover’s burden on the motion does not require him to negate all essential
elements of the adverse party’s claim, action, or defense, but rather to point out to
the court the absence of factual support for one or more elements essential to the
adverse party’s claim, action, or defense. The burden is on the adverse party to
produce factual support sufficient to establish the existence of a genuine issue of
material fact or that the mover is not entitled to judgment as a matter of law.” La.
C.C.P. art. 966(D)(1).
On appeal, our review of summary judgments is de novo under the same
criteria that govern the district court’s consideration of whether summary judgment
is appropriate. Pizani v. Progressive Ins. Co., 98-225 (La. App. 5 Cir. 9/16/98),
719 So.2d 1086, 1087. Thus, appellate courts ask the same questions the trial court
does in determining whether summary judgment is appropriate: whether there is
any genuine issue of material fact, and whether the mover is entitled to judgment
as a matter of law. Breaux v. Fresh Start Properties, L.L.C., 11-262 (La. App. 5
Cir. 11/29/11), 78 So.3d 849, 852.
The offer of judgment, which is quoted in full above, specifically provides
the following with respect to costs, interest, and attorney’s fees:
… Furthermore, the offer of $25,000.00 shall be exclusive of costs,
interest, attorney’s fees, and any other amount which may be awarded
pursuant to statute or rule. (Emphasis added.)
In its motion for partial summary judgment, Tile Redi asserted that under the
express terms of the offer of judgment, the offer of judgment excluded attorney’s
fees, costs, judicial interest, or any other amounts allowed by statute or rule.
Plaintiffs argue on appeal that Tile Redi did not provide any legal citation, legal
argument, or factual support for its argument that the “exclusive of” provision of
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the offer of judgment should be interpreted as meaning that the offer excluded or
otherwise precluded the award of costs, interest, attorney’s fees and any other
amount which may be awarded pursuant to statute or rule. Plaintiffs argue that
under the language of the offer of judgment and supporting jurisprudence, the offer
of judgment did not limit Tile Redi’s liability to $25,000.00 or preclude the award
of these additional amounts to plaintiffs. For the first time on appeal, relying on
Crawford v. United Serv. Auto. Ass’n, 03-2117 (La. App. 1 Cir. 3/24/05), 899
So.2d 668, plaintiffs argue that the “exclusive of” language of a La. C.C. art. 970
offer of judgment means costs, interest, attorney’s fees, or any other amount that
may be awarded by statute or rule will be over and above the total amount of the
settlement offer.
Louisiana Code of Civil Procedure art. 970 provides:
A. At any time more than twenty days before the time specified for
the trial of the matter, without any admission of liability, any party
may serve upon an adverse party an offer of judgment for the
purpose of settling all of the claims between them. The offer of
judgment shall be in writing and state that it is made under this
Article; specify the total amount of money of the settlement offer;
and specify whether that amount is inclusive or exclusive of costs,
interest, attorney fees, and any other amount which may be
awarded pursuant to statute or rule. Unless accepted, an offer of
judgment shall remain confidential between the offeror and
offeree. If the adverse party, within ten days after service, serves
written notice that the offer is accepted, either party may move for
judgment on the offer. The court shall grant such judgment on the
motion of either party.
B. An offer of judgment not accepted shall be deemed withdrawn and
evidence of an offer of judgment shall not be admissible except in
a proceeding to determine costs pursuant to this Article.
C. If the final judgment obtained by the plaintiff-offeree is at least
twenty-five percent less than the amount of the offer of judgment
made by the defendant-offeror or if the final judgment obtained
against the defendant-offeree is at least twenty-five percent greater
than the amount of the offer of judgment made by the plaintiff-
offeror, the offeree must pay the offeror’s costs, exclusive of
attorney fees, incurred after the offer was made, as fixed by the
court.
D. The fact that an offer is made but not accepted does not preclude a
subsequent offer or a counter offer. When the liability of one party
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to another has been determined by verdict, order, or judgment, but
the amount or extent of the damages remains to be determined by
future proceedings, either party may make an offer of judgment,
which shall have the same effect as an offer made before trial if it
is served within a reasonable time not less than thirty days before
the start of hearings to determine the amount or extent of damages.
E. For purposes of comparing the amount of money offered in the
offer of judgment to the final judgment obtained, which judgment
shall take into account any additur or remittitur, the final judgment
obtained shall not include any amounts attributable to costs,
interest, or attorney fees, or to any other amount which may be
awarded pursuant to statute or rule, unless such amount was
expressly included in the offer.
F. A judgment granted on a motion for judgment on an offer of
judgment is a final judgment when signed by the judge; however,
an appeal cannot be taken by a party who has consented to the
judgment.
It has been established that the function of La. C.C.P. art. 970 is to
compensate the rejected offeror who was forced to incur greater trial litigation
costs than he would have if the offeree had accepted his settlement offer.
Hacienda Construction, Inc. v. Newman, 10-18 (La. App. 5 Cir. 6/29/10), 44 So.3d
333, 337.
Looking at the statue as a whole, La. C.C.P. art. 970(A) requires that an
offer of judgment be in writing, state that it is being made under the article, specify
the total amount of money of the settlement offer, and specify whether the amount
is inclusive or exclusive of costs, interest, attorney’s fees, and any other amount
which may be awarded pursuant to statute or rule. Under La. C.C.P. art. 970(C),
after the offer of judgment is refused, if the final judgment obtained by the offeree
after trial is at least twenty-five percent less than the amount of the offer of
judgment made previously, then the offeree must pay the offeror’s costs, exclusive
of attorney’s fees, incurred after the offer was made. Section E of La. C.C.P. art.
970 provides the method of calculating the difference between the offer of
judgment and the final judgment. To compare the offer of judgment and the final
judgment, the final judgment shall contain any amount obtained as a result of
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additur or remittitur, but shall not include any amounts attributable to costs,
interest, or attorney’s fees, or any other amount which may be awarded pursuant to
statute or rule, unless expressly indicated in the offer. Thus, the
exclusive/inclusive language mandated in La. C.C.P. art. 970(A) is used, per La.
C.C.P. art. 970(E), to calculate the amount owed, should the offer of judgment be
rejected and the matter goes to trial. See also, Hendrick, 109 So.3d at 481.
In Crawford, the plaintiff filed separate suits that were later consolidated
against USAA, his insurer, for accidents that occurred in 1994 and 1995. The
plaintiff sought to recover damages under his insurance policy that provided
uninsured/underinsured motorist and medical payments coverage. The plaintiff
filed a motion for summary judgment on the issues of liability and insurance
coverage. The trial court granted the plaintiff’s motion for summary judgment on
liability for the 1994 accident, but not for the 1995 accident, and found the plaintiff
established coverage for each accident, subject to credits already paid by USAA.
Subsequently, the parties filed a joint stipulation into the record, which included
that the plaintiff would be entitled to a 5 percent penalty and a 20 percent
attorney’s fee award on any damage awarded and also provided for how post-
verdict calculations would be performed, including the application of the credits.
Id. at 669. USAA then made an offer of judgment pursuant to La. C.C.P. art. 970
for $250,000 “exclusive of all costs, interest, attorney’s fees, and any other amount
which may be awarded pursuant to statute, rule, or stipulation.” The plaintiff
accepted; however, the parties subsequently disagreed regarding the terms of the
settlement, specifically regarding the application of the previous credits. Cross
motions for judgment were filed. In its motion, USAA argued for the application
of the prior stipulation concerning the deduction of past credits which would
reduce the amount owed by USAA under the offer of judgment. Id. at 670. The
20-CA-96 7
trial court granted USAA’s motion, gave USAA a credit for the sums already paid,
and awarded penalties and attorney’s fees. Id. at 670-671.
On appeal, the First Circuit reversed. Pertinent to plaintiffs’ argument in
this case, the First Circuit discussed that “exclusive of all costs, interest, attorney’s
fees, and any other amount which may be awarded” in the offer of judgment means
that costs, interest, attorney’s fees, and any other amount that may be awarded will
be over and above the total amount of the settlement offer of $250,000. Id. at 672
(citing Nichols v. Alonzo, 575 So.2d 403 (La. App. 4th Cir. 1991), writ denied, 577
So.2d 3 (La. 1991)).
The court then found, after considering correspondence between the parties
following the plaintiff’s acceptance of the offer of judgment, that in light of
surrounding events and circumstances, USAA was not entitled to reduce the total
amount of money of the settlement offer by the previously determined credits.
USAA was ordered to pay $250,000, plus penalties, attorney’s fees, legal interest,
and costs. Id. at 673-674.
Considering our previous discussion of La. C.C.P. art. 970, specifically that
the exclusive/inclusive language mandated in La. C.C.P. art. 970(A) is used per La.
C.C.P. art 970 (E) to calculate the amount owed should the offer of judgment be
rejected, we are not persuaded by plaintiffs’ reliance on Crawford’s discussion that
the “exclusive of” language of a La. C.C.P. art. 970 offer of judgment must mean
that costs, interest, attorney’s fees, or any other amounts allowed by statute or rule
will be awarded over and above the settlement offer.
In the present case, Tile Redi argues that by the express language of the
offer, the offer of judgment was to settle all claims for $25,000.00 only, and thus it
would not owe awards for costs, attorney’s fees, and interest. In support, Tile Redi
provided its email sent to counsel for plaintiffs prior to the filing of their Motion
for Judgment on the Offer of Judgment in which it clarified that the offer of
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judgment was for “$25,000 and no more,” that the offer would be extended till the
next day and then withdrawn, and that Tile Redi was ready to try the case. In
opposition, plaintiffs failed to put forth any argument or evidence that the offer of
judgment did not preclude the award of costs, interests, attorney’s fees, or any
other amount that may be awarded by statute or rule.
Plaintiffs also contend that Tile Redi failed to demonstrate that plaintiffs
were not entitled to recover costs, attorney’s fees, and interest because there has
been no finding or admission of liability. Plaintiffs argue that Tile Redi
erroneously argued that Hendrick was directly on point and misstated the case’s
holding.
In Hendrick, supra, the plaintiffs filed suit under the New Home Warranty
Act. Id., 109 So.3d at 477. Subsequently, the plaintiffs accepted an offer of
judgment pursuant to La. C.C.P. art. 970, which stated in part: “In accordance with
Louisiana Code of Civil Procedure Article 970, my client, Neff Construction, Inc.,
is making an offer of judgment to your clients in the total amount of $125,000.00,
exclusive of costs, interest and attorney’s fees.” A dispute arose in which the
plaintiffs argued that they were entitled to attorney’s fees, costs, and interest under
the New Home Warranty Act. Id. at 478. On appeal, the Second Circuit
considered the relevant parts of the New Home Warranty Act, La. R.S. 9:3149 (A),
which states in part, “If a builder violates this Chapter by failing to perform as
required by the warranties provided in this Chapter, any affected owner shall have
a cause of action against the builder for actual damages, including attorney’s fees
and court costs, arising out of the violation.” Based on the statute, the court found
that in order for the plaintiffs to be entitled to attorney’s fees and costs under the
New Home Warranty Act, the judgment entered in the case pursuant to La. C.C.P.
art. 970 must constitute a finding that the defendant violated the act, resulting in
liability on the defendant’s part. The court found that the offer of judgment and
20-CA-96 9
the judgment entered after the offer of judgment was accepted did not result in a
finding of liability on the part of the defendant. Thus, the court found the plaintiffs
were not entitled to recover attorney’s fees and costs under the statute. Id. at 483.
In the present case, plaintiffs filed an action in redhibition. Louisiana Code
of Civil Procedure art. 2545 provides:
A seller who knows that the thing he sells has a defect but omits to
declare it, or a seller who declares that the thing has a quality that he
knows it does not have, is liable to the buyer for the return of the price
with interest from the time it was paid, for the reimbursement of the
reasonable expenses occasioned by the sale and those incurred for the
preservation of the thing, and also for damages and reasonable
attorney fees.
A seller is deemed to know that the thing he sells has a redhibitory
defect when he is a manufacturer of that thing.
Upon review, we find, like the court did in Hendrick, that in order for
plaintiffs to be entitled to attorney’s fees pursuant to La. C.C.P. art. 2545, then the
judgment entered here under La. C.C.P. art. 970 must constitute a finding that Tile
Redi is liable. However, the offer of judgment in this present case clearly states
that it is “without any admission of liability.” Further, “the jurisprudence of this
state holds that the entry of a judgment on an offer of judgment under La. C.C.P.
art. 970 incorporates the relevant portion of the statute ‘without any admission of
liability’.” Hendrick, 109 So.3d at 483, citing Hamilton v. Louisiana Casino
Cruises, Inc., 99-1147 (La. App. 1st Cir. 6/10/00), 828 So.2d 1, writ denied, 00-
2373 (La. 11/17/00), 774 So.2d 973.
Additionally, we find no merit to plaintiffs’ argument that the holding in
Dauterive, supra, was a liability determination and thus is law of the case. In
Dauterive, Tile Redi filed a peremptory exception of prescription arguing that
because it was not the manufacturer of the shower pan, plaintiffs’ action was
prescribed pursuant to La. C.C.P. art. 2534(A)(1). Plaintiffs argued in response
that La. C.C.P. art. 2534(A)(1) did not control. They argued that their action was
not prescribed on the face of the petition because they had alleged that Tile Redi
20-CA-96 10
was the seller and the manufacturer of the shower pan and was deemed to know of
the redhibitory defects pursuant to La. C.C.P. art. 2545. Thus, La. C.C. P. art.
2534(B) controlled. After a hearing, in which neither party introduced evidence,
the trial court sustained the exception of prescription. Dauterive, 246 So.3d at 804.
On appeal, this Court reversed. Under the law, when prescription is raised by
peremptory exception, and evidence is not introduced at the hearing on the
exception, then the exception of prescription must be decided on the facts as
alleged in the petition with all allegations therein accepted as true. Id. at 804-805
citing Tenorio v. Exxon Mobil Corp., 14-814 (La. App. 5 Cir. 4/15/15), 170 So.3d
269, 273, writ denied, 15-1145 (La. 9/18/15), 178 So.3d 149. After noting that
neither party presented evidence at the hearing, this Court stated, “accepting as true
the facts as alleged in the petition, Tile Redi was both the seller and manufacturer
of the shower pan and plaintiffs’ action is governed by La. C.C.P. art. 2534(B).”
This Court then found that under La. C.C.P. art. 2534(B) plaintiffs’ action was not
prescribed and concluded that the trial court erred in concluding otherwise. Id. at
805. Accordingly, this Court did not make a liability determination, but instead,
for the purpose of ruling on an exception of prescription, applied the law by
accepting the allegations in the petition as true to find that plaintiffs’ action was
not prescribed.
Accordingly, upon de novo review, we find that there is no genuine issue as
to material fact and that Tile Redi is entitled to judgment as a matter of law. Tile
Redi has met its burden of proof in showing that the offer of judgment excluded an
award of attorney’s fees, costs, judicial interest, or any other amounts allowed by
statute or rule. Further, because there has been no determination of liability,
attorney’s fees cannot be recovered under La. C.C. art. 2545. Plaintiffs have failed
to produce any support that Tile Redi is not entitled to judgment as a matter of law.
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CONCLUSION
For the foregoing reasons, we affirm the trial court’s judgment which
granted Tile Redi’s partial motion for summary judgment to the effect that
plaintiffs shall not be entitled to recover attorney’s fees, costs, and judicial interest,
and which dismissed the matter in its entirety with prejudice.
AFFIRMED
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SUSAN M. CHEHARDY CURTIS B. PURSELL
CHIEF JUDGE CLERK OF COURT
MARY E. LEGNON
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
ROBERT A. CHAISSON SUSAN BUCHHOLZ
STEPHEN J. WINDHORST
FIRST DEPUTY CLERK
HANS J. LILJEBERG
JOHN J. MOLAISON, JR. FIFTH CIRCUIT
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OCTOBER 5, 2020 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES
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20-CA-96
E-NOTIFIED
24TH JUDICIAL DISTRICT COURT (CLERK)
HONORABLE DONALD A. ROWAN, JR. (DISTRICT JUDGE)
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