Opinion
Civil Action No. 99-0892 Section: E/2
June 12, 2000
RULING ON MOTIONS
Defendant The Sherwin-Williams Company ("Sherwin-Williams") has filed three additional motions in limine shortly before trial seeking (1) an order prohibiting the plaintiff from requesting a "double recovery" in the presence of the jury; (2) an order excluding evidence of or reference to "damages" allegedly stemming from the purchase and application of latex (not enamel) paint to the plaintiff's apartment complexes; and (3) an order precluding Tonti's counsel from arguing that Tim Spinier d/b/a Tim Spinler Painting/Construction assigned any litigious rights against Sherwin-Williams to Tonti Properties. plaintiff Tonti Properties ("Tonti") has submitted by facsimile on the Friday prior to trial a motion to strike a witness.
This is a suit brought by the Tonti as the owner of two apartment complexes, Mark Twain II Apartments in Harahan, Louisiana, and The Daytona Apartments, in Metairie, Louisiana, against Sherwin-Williams, for redhibition, reduction of price, and negligent misrepresentation, because paint which the plaintiff purchased from the defendants, Sherwin-Williams Industrial Enamel, mildewed excessively very soon after it was purchased and applied to the exterior of the apartment complexes. Plaintiff contends that representatives of Sherwin-Williams, particularly Christa Duhe, represented to Tim Spinler, Tonti's painting contractor, that the paint contained an ingredient which would stop and prevent the growth of mildew.
Double Recovery
Sherwin-Williams seeks an order precluding the plaintiff from seeking a "double recovery". It asserts that throughout this litigation, plaintiff's position has been that if it prevails on liability, it is entitled to recover both the entire cost of the original paint job, including labor and materials, and the cost of repainting the apartment complexes, including labor and materials. Tonti suggests that because it is allowed "damages" under the redhibition article in the Louisiana Civil Code, it can seek both the costs of the original paint job and the cost of a new paint job.
Louisiana Civil Code article 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. If the use made of the thing, or the fruits it might have yielded, were of some value to the buyer, such a seller may be allowed credit for such use or fruits.
A seller is deemed to know that the thing he sells has a redhibitory defect when he is a manufacturer of that thing.
Because the article includes the phrase "and also for damages", the plaintiff contends that he can seek the cost of a new paint job in addition to that already spent. However, the apartment complexes obviously were in need of painting at the time plaintiff entered into the painting contract with Spinler and Spinler purchased the paint. Allowing plaintiff to recover both the cost of the initial paint job and a new paint job would place the plaintiff in a better position that it was when it had the apartment complexes painted in the first place, and thus, in this sense, it is a "double recovery" of the type described in Dixie Trucks. Inc. v. Davis, 530 So.2d 107, 110 (La.App. 2d Cir. 1988) Under Civil Code article 2545, plaintiff is entitled to a recovery of the purchase price, including the materials and the labor, initially expended with interest from the time it is paid, and any incidental expenses incurred for the preservation of the thing, but may not also recover the cost of a new paint job since the apartment buildings were in need of a paint job in 1998 before the Sherwin-Williams paint in question was purchased.
Latex Paint Damages
Sherwin-Williams seeks a order prohibiting the introduction of evidence concerning damages stemming from latex paint. It alleges that all of the mildewing occurred in the enamel paint, which only constituted 30% of the paint applied to the exterior of The Mark Twain II and a small portion of the paint applied to The Daytona apartments, and that the evidence should be limited accordingly.
Plaintiff responds that this motion should be denied as it is entitled to introduce evidence concerning the performance of all of the paint purchased from Sherwin-Williams, whether latex or enamel. It states that it does intend to introduce evidence that some of the latex paint discolored due to the growth of mildew after it was applied. This motion is fact based and dependent upon the testimony that will be presented. It may not be granted as there is a question of fact concerning the issue raised in it.
Spinler's Assignment of Litigious Rights
Defendant seeks an order precluding the introduction of evidence that Tim Spinler assigned his litigious rights to a redhibition claim to plaintiff Tonti on the grounds that (1) Spinler did not receive any consideration for the assignement and (2) the rights and causes of action which Spinler attempts to assign retroactively to Tonti are time-barred. Plaintiff suggests that it is without merit because the exhibits indicate that consideration was given and that Tonti has a viable cause of action in redhibition against Sherwin-Williams and does not need to prosecute Spinler's claims. This does not answer the question raised by Sherwin-Williams as to the validity, under the law, of the assignment of rights. If indeed the assignment is prescribed on its face, then the Court will so instruct the jury. In the absence of specific facts addressing the issues raised regarding the assignment of rights, the Court must deny the motion. However, defendant may certainly object and raise the issue in the course of trial if the evidence shows that the assignment was prescribed or otherwise invalid.
Plaintiff's Motion to Strike
Plaintiff seeks to strike defendant's witness Steve Catalanato, the manager of Sherwin-Williams Airline Highway Store, on the grouds that he has never been listed on any "may call" or "will call" witness list until the week prior to trial. Due to the fact that plaintiff's motion was not submitted until the Friday prior to trial, defendant has not responded. The motion will be denied, with right to renew at the trial.
Accordingly, for the above and foregoing reasons,
IT IS ORDERED that the motion in limine of defendant Sherwin-Williams for an order prohibiting plaintiff from seeking a "double recovery" be and is hereby GRANTED as outlined herein;
IT IS FURTHER ORDERED that the motions in limine of defendant Sherwin-Williams for an order prohibiting defendant from introducing evidence of the mildewing of latex paint and the assignment by Spinler of litigious rights be and are hereby DENIED, but defendant may renew its objections at trial, if supported by the evidence;
IT IS FURTHER ORDERED that the motion of plaintiff Toni Properties to strike the testimony of Steve Catalanato, defendant's witness, is hereby DENIED, but plaintiff may renew the motion at trial if the witness is called and defendant has no just cause for failing to list him as a "may call" or "will call" witness until the week prior to trial.