425 Notre Dame, LLC v. Kolbe & Kolbe Millwork Co., Inc. et al

Filing 69

ORDER AND REASONS: ORDERED that the motions to dismiss filed by Landis, Southern Steel, and McInerney (Rec. Docs. 36, 42, 48, 49) are GRANTED. Landis' Motions to Stay Pending Arbitration (Rec. Docs. 38, 45) are DENIED as moot. IT IS FURTHER ORDERED that the motions for leave to file reply filed by Landis, Southern Steel, and McInerney (Rec. Docs. 58, 60, 61, 63, 65, 66) are DENIED as moot. Signed by Judge Carl Barbier on 12/16/15. (sek)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

425 NOTRE DAME, LLC

CIVIL ACTION

VERSUS

NO: 15-454

KOLBE & KOLBE MILL WORK CO.,
INC., ET AL.

SECTION: “J”(4)

ORDER AND REASONS
Before the Court are two 12(b)(6) Motions to Dismiss for
Failure to State a Claim Upon Which Relief Can be Granted (Rec.
Doc. 36; Rec. Doc. 42) filed by Third-Party Defendant Landis
Construction Co., L.L.C. (“Landis”), two alternative Motions to
Stay Pending Arbitration (Rec. Doc. 39; Rec. Doc. 45) filed by
Landis, and oppositions thereto filed by Defendants and ThirdParty Plaintiffs Kolbe & Kolbe Millwork Co., Inc. (“Kolbe”) (Rec.
Doc. 50; Rec. Doc. 53) and Grand Openings, Inc. (“Grand Openings”)
(Rec. Doc. 54; Rec. Doc. 57).
Also before the Court are a Rule 12(b)(6) Motion to Dismiss
(Rec. Doc. 48) filed by Third-Party Defendants Southern Steel
Fabricators,

Inc.

and

(collectively

“Southern

Southern
Steel”),

Steel
a

Fabricators,

Motion

to

Dismiss

L.L.C.
Grand

Opening, Inc.’s Third Party Complaint (Rec. Doc. 49) filed by
Third-Party Defendant McInerney & Associates, Inc. (“McInerney”),
and oppositions thereto (Rec. Doc. 55; Rec. Doc. 56) filed by Grand
Openings.
1

Having

considered

the

motion

and

legal

memoranda,

the

record, and the applicable law, the Court finds that the motions
to dismiss filed by Landis, Southern Steel, and McInerney should
be GRANTED. Landis’ Motion to Stay Pending Arbitration should be
DENIED as moot.
FACTS AND PROCEDURAL BACKGROUND
This litigation arises from a construction and renovation
project in New Orleans, Louisiana. The owner, 425 Notre Dame,
L.L.C. (“Notre Dame”), hired Landis as the general contractor on
the project. (Rec. Doc. 36-1, at 1.) The contract between Notre
Dame and Landis provided that the buildings were to contain an
aluminum

window

system.

Id.

at

2.

According

to

Landis,

the

architect on the project, Rozas Ward Architects, insisted on using
windows manufactured by Kolbe. Id.
Landis then entered into a purchase agreement with Grand
Openings, a distributor for Kolbe, which provided that Grand
Openings would furnish the windows for the project. (Rec. Doc. 1,
at 2.) In turn, Grand Openings and Kolbe signed a purchase order,
in which Kolbe agreed to manufacture the windows. (See Rec. Doc.
36-1, at 2.) Landis also entered into a contract with Southern
Steel, in which Southern Steel agreed to manufacture the window
mullions

and

steel

stiffners.

(Rec.

Doc.

48-1.)

McInerney

installed the mullions and stiffeners manufactured by Southern

2

Steel, as well as the windows manufactured by Kolbe. (Rec. Doc.
49-1, at 2.)
The windows began leaking after their installation. Id. at 3.
Notre Dame hired a consultant to perform water intrusion testing
services, and the windows failed the test. Id. Kolbe removed a
window unit and tested it at its facility in Wisconsin. Id. Kolbe
then attempted to fix the leaking windows by injecting silicone
into the corners of each window. Id. at 4. Its corrections were
unsuccessful, and the windows continued to leak. Id. Grand Openings
and Kolbe declined to manufacture and provide replacement windows.
Id.
On February 12, 2015, Notre Dame filed suit against Kolbe and
Grand Openings, alleging that Defendants are liable for damages
for negligence, for breach of the warranty against redhibitory
defects, for breach of the warranty of fitness for ordinary use,
and under the Louisiana Products Liability Act (“LPLA”). Id. at 5.
On

August

17,

2015,

Kolbe

filed

a

cross-claim

against

Grand

Openings and a third-party complaint against Landis. (Rec. Doc.
22.) On that same day, Grand Openings filed third-party complaints
against Landis, Southern Steel, and McInerney. (Rec. Doc. 24.)
Grand Openings alleged that Southern Steel was liable to it
jointly

and

in

solido

for

any

defects

in

the

stiffners

and

mullions. Grand Openings also alleged that McInerney was liable
jointly and in solido for the negligence of its employees in
3

failing to properly install the windows, mullions, and stiffners.
Grand Openings and Kolbe both alleged that Landis was required to
defend, indemnify, and hold harmless the Third-Party Plaintiffs
for

the

negligence

of

Landis

employees

and

as

a

seller

or

manufacturer under the LPLA.
Landis filed the instant motions on October 13 and October
15. Southern Steel filed its motion on October 19, and McInerney
filed its motion on November 17. Kolbe opposed Landis’s motions on
November 20 (Rec. Doc. 50; Rec. Doc. 53), and Grand Openings filed
its opposition on December 8 (Rec. Doc. 54; Rec. Doc. 55; Rec.
Doc. 56; Rec. Doc. 57). The Court set the motions for oral argument
on December 16, 2015.
PARTIES’ ARGUMENTS
The motions to dismiss filed by Landis, Southern Steel, and
McInerney share the same legal basis. First, the Third-Party
Defendants

argue

that

the

Louisiana

comparative

fault

scheme

applies to the claims asserted against them by the Third-Party
Plaintiffs. Under this scheme, Defendants cannot be held liable
for the acts, omissions, fault, breaches, or otherwise of any other
person. They argue that Notre Dame’s claims sound in contract,
negligence, and products liability, and the comparative fault
doctrine applies to these claims. Because Kolbe and Grand Openings
will only be liable for their own negligence, the Third-Party
Defendants are not jointly and solidarily liable to the third4

party

plaintiffs.

Without

solidary

liability,

the

third-party

defendants argue that they cannot be liable for contribution or
indemnity. Alternatively, Landis and Southern Steel requested that
the actions against it be stayed pending arbitration. The contract
signed by Notre Dame and Landis contained a clause that required
any disputes between the parties to be decided by arbitration.
In its opposition, Kolbe focuses on its contract claims,
arguing that Landis is solidarily liable with it to Notre Dame.
Kolbe claims that Landis is liable in redhibition as the comanufacturer of a defective thing. As such, Landis is deemed to be
a

seller

in

bad

faith.

Kolbe

alleges

that

Landis

is

a

co-

manufacturer because it modified Kolbe’s windows “by verticallymulling or fastening together, in the field . . . three sets of
Kolbe windows side-by-side into a final window assembly product
that consisted of nine total windows assembled in a rectangular
grid configuration . . . .” (Rec. Doc. 50, at 4.) The window
assemblies were then installed into the project. Thus, Kolbe
contends that it and Landis are solidarily liable, enabling Kolbe
to bring a third-party claim against Landis.
Grand Openings filed separate oppositions to the motions
filed by Landis, Southern Steel, and McInerney. However, its legal
arguments in each motion are the same. In its opposition to Landis’
motion, Grand Openings first echoes Kolbe’s assertion that Landis
was a co-manufacturer of the windows, making it solidarily liable
5

with Kolbe in redhibition. In its oppositions to Southern Steel
and McInerney’s motions, Grand Openings again claims that these
Third-Party Defendants were manufacturers of the windows, and thus
they are liable in redhibition. Grand Openings further argues that
comparative fault does not apply in contract claims, including
redhibition. Finally, Grand Openings argues generally that it, as
a mere seller, has no role in the manufacturing of the defective
windows. In addition, Grand Openings seems to assert that the
Third-Party Defendants were manufacturers under the LPLA, but it
does not elaborate on this argument.
LEGAL STANDARD
Under the Federal Rules of Civil Procedure, a complaint
(including a third-party complaint) must contain “a short and plain
statement of the claim showing that the pleader is entitled to
relief.” Fed. R. Civ. P. 8(a)(2). The complaint must “give the
defendant fair notice of what the claim is and the grounds upon
which it rests.” Dura Pharm., Inc. v. Broudo, 544 U.S. 336, 346
(2005). The allegations “must be simple, concise, and direct.”
Fed. R. Civ. P. 8(d)(1).
“Under

Rule

12(b)(6),

a

claim

may

be

dismissed

when

a

plaintiff fails to allege any set of facts in support of his claim
which would entitle him to relief.” Taylor v. Books A Million,
Inc., 296 F.3d 376, 378 (5th Cir. 2002) (citing McConathy v. Dr.
Pepper/Seven Up Corp., 131 F.3d 558, 561 (5th Cir. 1998)). To
6

survive a Rule 12(b)(6) motion to dismiss, the plaintiff (or thirdparty plaintiff) must plead enough facts to “state a claim to
relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
547 (2007)). A claim is facially plausible when the plaintiff
pleads facts that allow the court to “draw the reasonable inference
that the defendant is liable for the misconduct alleged.” Id. A
court must accept all well-pleaded facts as true and must draw all
reasonable inferences in favor of the plaintiff. Lormand v. U.S.
Unwired, Inc., 565 F.3d 228, 232-33 (5th Cir. 2009); Baker v.
Putnal, 75 F.3d 190, 196 (5th Cir. 1996). The court is not,
however, bound to accept as true legal conclusions couched as
factual allegations. Iqbal, 556 U.S.at 678.
DISCUSSION
Rule 14 of the Federal Rules of Civil Procedure provides that
a “defending party may, as third-party plaintiff, serve a summons
and complaint on a nonparty who is or may be liable to it for all
or part of the claim against it.” Fed. R. Civ. P. 14(a)(1). A
third-party demand cannot be used to assert that the third-party
defendant is also liable to the plaintiff. Owen Equip. & Erection
Co. v. Kroger, 437 U.S. 365, 368 n.3 (1978). Such a claim is also
inappropriate

when

“the

defendant

and

putative

third

party

plaintiff says, in effect, ‘It was him, not me.’” Wright v. City
of Tallulah, No. 13-1631, 2014 WL 1788711, at *4 n.5 (W.D. La. May
7

5, 2014). Rather, a third-party claim may be used “where a proposed
third

party

plaintiff

says,

in

effect,

‘If

I

am

liable

to

plaintiff, then my liability is only technical or secondary or
partial, and the third party defendant is derivatively liable and
must reimburse me for all or part . . . of anything I must pay
plaintiff.’” Id. (quoting Watergate Landmark Condo. Unit Owners’
Ass’n v. Wiss, Janey, Eistner Assocs., Inc., 117 F.R.D. 576, 578
(E.D. Va. 1987)). Thus, the defendant must show a “basis for the
third-party defendant's liability to the defendant (also known as
the third-party plaintiff).” McCain v. Clearview Dodge Sales,
Inc., 574 F.2d 848, 849-50 (5th Cir. 1978).
A third-party demand is appropriate “when the basis of the
third-party claim is indemnity, subrogation, contribution, express
or implied warranty, or some other theory.” Martco Ltd. P'ship v.
Bruks Inc., 430 F. App'x 332, 334 (5th Cir. 2011) (quoting 6
Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal
Practice

&

Procedure

§

1446

(3d

ed.

2010)).

The

right

to

contribution or indemnity must exist under state substantive law.
Gen. Dynamics Corp. v. Adams, 340 F.2d 271, 279 (5th Cir. 1965).
Because

this

case

involves

tort

and

contract

claims,

the

substantive law for each will be discussed separately.
A. Right to Contribution or Indemnity in Tort Cases
In

Louisiana,

the

1996

amendments

to

Louisiana

Civil

Code

article 2324 abolished solidarity among negligent tortfeasors and
8

implemented a system of comparative fault. Beauregard v. State ex
rel.

DOTD,

21

So.

3d

442,

443

(La.

Ct.

App.

2009).

Under

Louisiana’s comparative fault system, “the degree or percentage of
fault of all persons causing or contributing to the injury, death,
or loss shall be determined, regardless of whether the person is
a party to the action or a nonparty, and regardless of the person's
insolvency, ability to pay, [or] immunity by statute.” La. Civ.
Code art. 2323. Comparative fault applies to “all” cases, including
strict

liability,

absolute

liability,

and

products

liability.

Hollybrook Cottonseed Processing, LLC v. Carver, Inc., No. 09-750,
2011 WL 2214936, at *2 (W.D. La. June 6, 2011). Comparative fault
principles apply in this case unless Kolbe and Grand Openings
asserted valid claims for contribution or indemnity.
First, Defendants did not state a valid claim for contribution.
“Contribution permits a tortfeasor who has paid more than his share
of a solidary obligation to seek reimbursement from the other
tortfeasors for their respective shares of the judgment, which
shares are proportionate to the fault of each.” Hamway v. Braud,
838 So. 2d 803, 807 (La. Ct. App. 2002) (emphasis in original).
Following the 1996 amendments to article 2324, solidary liability
arises only if tortfeasors conspire to commit an intentional or
willful act. See Beauregard, 21 So. 3d at 443. Accordingly, absent
such intentional or willful conduct, “[a] joint tortfeasor shall
not be liable for more than his degree of fault and shall not be
9

solidarily liable with any other person for damages attributable
to the fault of such other person.” La. Civ. Code art. 2324.
Here, the third-party plaintiffs seek contribution from the
third-party defendants under the tort theories of negligence and
products liability. The third-party defendants did not conspire to
commit an intentional tort or acts. Kolbe and Grand Openings
alleged mere negligence, not intentional torts. Furthermore, Notre
Dame did not allege that Defendants committed intentional torts.
Because no intentional acts occurred, joint and solidary liability
cannot

exist

between

Third-Party

Plaintiffs

and

Third-Party

Defendants with respect to the tort claims.
Second, Defendants did not state a valid claim for indemnity
under tort principles. Indemnity is based on the theory of unjust
enrichment “and may lie when one party discharges a liability which
another rightfully should have assumed.” Nassif v. Sunrise Homes,
Inc.,

739

So.

2d

183,

185

(La.

1999)

(quoting

Black’s

Law

Dictionary 769 (6th ed. 1990)). “The obligation to indemnify may
be express, as in a contractual provision, or may be implied in
law, under a tort or quasi-contract theory, even in the absence of
an indemnity agreement.” Hamway, 838 So. 2d at 806. 1 In the absence
of an express contractual provision, claim for legal indemnity

1

See Part B, supra, for a discussion of the right to indemnity arising by

contract.

10

“arises only when the fault of the person seeking indemnification
is solely constructive or derivative, from failure or omission to
perform some legal duty, and may only be had against one who,
because of his act, has caused such constructive liability to be
imposed.” Id. Whereas contribution, or now constructive fault,
apportions the loss between joint tortfeasors, indemnity shifts
the entire loss from a tortfeasor only constructively at fault to
the party primarily responsible for the damages. Thus, a party
“who is actually negligent or actually at fault cannot recover
[legal] indemnity.” Id.
“A third-party claim for indemnity should be dismissed if
‘[t]here is no foreseeable combination of findings, viewing the
allegations of the pleadings . . . in the light most favorable to
[the party seeking indemnity], that could result in [that party]
being cast in judgment for mere technical or passive fault.’”
Martco, 430 F. App’x at 335 (alteration in original) (quoting
Threlkeld v. Haskins Law Firm, 922 F.2d 265, 267-68 (5th Cir.
1991)). “In determining whether a theoretical basis for indemnity
exists, ‘[s]crutiny is . . . directed at the nature . . . of the
fault, if any, of the party seeking indemnity.’” Id. (alteration
in original) (quoting Ducre v. Exec. Officers of Halter Marine,
Inc., 752 F.2d 976, 984-85 (5th Cir. 1985)). “An action for
indemnity

will

lie

so

long

as

the

party's

fault

‘can

be

characterized as merely technical or constructive’ and where the
11

party ‘was exposed to liability and compelled to pay damages . .
. on account of the negligent act of’ the third-party defendant.”
Id. (citation omitted).
Here,

Defendants’

constructive.

Notre

fault

Dame

was

alleged

more
that

than
Kolbe

technical

or

negligently

manufactured the windows, which caused them to leak. Notre Dame
did not allege that Third-Party Defendants were ultimately at
fault. Furthermore, Kolbe and Grand Openings did not allege that
Third-Party Defendants are technically liable for Notre Dame’s
damages. If this Court ultimately finds Defendants to be at fault,
Defendants would have no basis for shifting responsibility to
Landis, Southern Steel, and McInerney. Thus, Kolbe and Grand
Openings could never be cast in judgment for technical or passive
fault. For this reason, the rights to contribution and indemnity
do not arise under tort law in this case.
B. Right to Contribution or Indemnity in Contract Cases
Similarly, Louisiana contract law does not give rise to the
rights to contribution or indemnity under the facts of this case.
In Louisiana contract law, contribution and indemnity are only
available to solidary obligors. 2 Thus, this case turns on the

2

“[A]n obligor not at fault who pays damages arising from the fault of another

solidary obligor may bring an action to compel the latter to reimburse him.
That action is the action of indemnity that avails a party burdened with

12

existence of a solidary obligation between Kolbe and Landis, or
between Grand Openings and Landis, Southern Steel, or McInerney.
An obligation is solidary when multiple obligors or obligees agree
to render one inseparable performance. La. Civ. Code art. 1790;
La. Civ. Code art. 1794. Thus, a single obligor or obligee could
be

called

upon

to

perform

the

entire

obligation.

See

id.

Solidarity is not presumed. La. Civ. Code art. 1796. Rather, it
must arise by law or by a clear expression of the parties’ intent.
Id. The party who seeks to benefit from solidarity must prove its
existence. 5 Saul Litvinoff & Ronald J. Scalise Jr., La. Civ. L.
Treatise, Law Of Obligations § 7.65 (2d ed.); c.f. Papania v. Aetna
Cas. & Sur. Co., 291 So. 2d 908, 911 (La. Ct. App. 1974).
1. Solidarity Arising by Contract
First, solidarity did not arise by contract in this case. To
become solidarily bound in contract, the parties need not expressly

liability because of the fault of another. Thus, if two solidary obligors of an
obligation to pay a sum of money have agreed that one of them will pay the debt
at maturity, but the one so committed fails through his fault to make payment
when due, the other obligor, if called upon to pay the debt plus interest for
delay, may recover the moratory interest he paid from the one at fault, besides
the latter's virile portion of the debt by way of contribution.” 5 Saul Litvinoff
& Ronald J. Scalise Jr., La. Civ. L. Treatise, Law Of Obligations § 7.72 (2d
ed.) (citations omitted) (emphasis added).

13

state that they will be liable “in solido.” Dodd v. Lakeview
Motors, Inc., 149 So. 278, 280 (La. Ct. App. 1933). Rather,
solidarity will arise “if all of the essential elements of an
obligation in solido are present.” Id. For instance, multiple
signers of a promissory note become solidarily bound when they all
promise to pay the note. Id.
Kolbe and Landis did not become solidarily bound by contract
because they did not enter into an express contractual agreement.
Similarly, Grand Openings did not contract with either Southern
Steel or McInerney. Thus, solidary obligations did not arise
between these parties. Landis and Grand Openings entered into a
contract: the Purchase Order. (Rec. Doc. 42-2.) However, the
Purchase

Order

does

not

contain

an

express

agreement

to

be

solidarily bound for any obligation owed to Notre Dame. While Grand
Openings

agreed

to

defend

and

indemnify

Landis

against

any

liabilities, Landis did not make a reciprocal agreement. (Rec.
Doc. 54-1, at 5.) Because the parties did not expressly agree to
be solidarily bound, the Purchase Order did not create solidary
liability between Grand Openings and Landis.
2. Solidarity Arising by Law
Kolbe

and

Grand

Openings’

claims

for

legal,

contractual

solidarity are based in redhibition and the implied warranty of
fitness for ordinary use. The Louisiana Civil Code describes
redhibition as follows:
14

The seller warrants the buyer against redhibitory
defects, or vices, in the thing sold.
A defect is redhibitory when it renders the thing
useless, or its use so inconvenient that it must be
presumed that a buyer would not have bought the thing
had he known of the defect. The existence of such a
defect gives a buyer the right to obtain rescission of
the sale.
A defect is redhibitory also when, without rendering the
thing totally useless, it diminishes its usefulness or
its value so that it must be presumed that a buyer would
still have bought it but for a lesser price. The
existence of such a defect limits the right of a buyer
to a reduction of the price.
La. Civ. Code Art. 2520. Solidary liability arises between the
manufacturer

and

the

seller

when

the

thing

sold

contains

a

redhibitory defect. La. Civ. Code art. 2545, Official Comment (c).
Louisiana courts have historically held that solidary liability
arises among all sellers and manufacturers of the defective product
in the chain of title. Aucoin v. S. Quality Homes, LLC, 984 So. 2d
685, 692 (La. 2008); Media Prod. Consultants, Inc. v. MercedesBenz of N. Am., Inc., 262 So. 2d 377, 381 (La. 1972). Likewise,
“[t]he manufacturer or seller of a component part may also be
solidarily bound.” RTT Truck Repair, LLC v. Paccar, Inc., No. 091105, 2011 WL 865582, at *2 (W.D. La. Mar. 10, 2011).
The warranty of fitness is closely related to the warranty
against redhibitory defects. See 24 Dian Tooley-Knoblett & David
Gruning, La. Civ. L. Treatise, Sales § 11:44. The Civil Code simply
provides, “The thing sold must be reasonably fit for its ordinary
use.” La. Civ. Code art. 2524. The general rules of obligations

15

govern a breach of this warranty. Id. As with redhibition, all
sellers and manufacturers in the chain of title are solidarily
liable

to

the

buyer

for

a

breach

of

warranty.

Media

Prod.

Consultants, Inc., 262 So. 2d at 381. However, Louisiana appellate
courts dispute whether solidary liability still exists in contract
claims, or whether comparative fault under revised article 2324
has displaced that area of law, as it has in the tort context.
See, e.g., Aucoin v. S. Quality Homes, LLC, 953 So. 2d 856, 86061 (La. Ct. App. 2007), rev’d 984 So. 2d 685 (La. 2008); Touro
Infirmary v. Sizeler Architects, 900 So. 2d 200, 203-06 (La. Ct.
App. 2005); Merlin v. Fuselier Constr., Inc., 789 So.2d 710, 717
(La. Ct. App. 2001).
This case does not turn on whether comparative fault applies.
Rather, it turns on whether Third-Party Defendants can be held
liable for redhibition or breach of warranty of fitness. For
solidary liability to exist in this case, Third-Party Defendants
must be sellers in the chain of title. Louisiana courts have held
that a buyer can only bring an action in redhibition against the
seller. Connell v. Davis, 940 So. 2d 195, 205 (La. Ct. App. 2006);
Sanders v. Earnest, 793 So. 2d 393, 408 (La. Ct. App. 2001); Franks
v. Royal Oldsmobile Co., 605 So. 2d 633 (La. Ct. App. 1992).
“Redhibition is not so much directed toward who is at fault in
causing the vice to exist but is directed toward the Warranty of

16

the seller against vices in the thing sold.” Cox v. Moore, 367 So.
2d 424, 426 (La. Ct. App. 1979); see Connell, 940 So. 2d at 205.
Here, if Third-Party Defendants are not sellers, they cannot
be solidarily liable with Defendants for redhibition or breach of
warranty of fitness. For this reason, McInerney and Southern Steel
cannot be held solidarily liable with Grand Openings. No sales
agreement existed between these Third-Party Defendants and any
other party in this case. Landis, on the other hand, entered into
a Purchase Order with Grand Openings. Kolbe asserts that Landis is
a seller in the chain of title and that Notre Dame is the ultimate
purchaser. However, Landis and Notre Dame did not sign a sales
agreement. Rather, they signed a “Standard Form of Agreement
between Owner and Contractor.” (See Rec. Doc. 38-2.) Landis’ status
as a seller depends on whether this agreement was a contract of
sale or a contract to build.
Louisiana courts have elucidated several tests to distinguish
a contract of sale from a contract to build. 3 The “fundamental
obligation test” provides that a contract to build “involve[s]
primarily the furnishing of labor and the contractor’s skill in
the

performance

of

the

job,”

rather

than

“a

mere

sale

of

materials.” Papa v. La. Metal Awning Co., 131 So. 2d 114, 117 (La.

3

See Lee H. Ayres, The Distinction Between a Building Contract and a Sale, 47

La. L. Rev. 821, 821-835 (March 1987).

17

Ct.

App.

1961).

The

Louisiana

Third

Circuit

Court

of

Appeal

developed a three-factor test to distinguish a contract to build
from a contract of sale. Duhon v. Three Friends Homebuilders Corp.,
396 So. 2d 559, 561 (La. Ct. App. 1981). In a contract to build,
(1) the buyer has some control over specifications of the object;
(2) the negotiations take place before the object is constructed;
and (3) the contract contemplates not only that one party will
supply materials, but also that that party will furnish his skill
and labor to build the desired object. Id. Some Louisiana courts
have also found that a contract to build arises when a party agrees
to construct a building for another on land owned by the other
party. Parker v. Brown, 150 So. 2d 306, 307 (La. Ct. App. 1963)
(“The action is on a construction contract wherein defendant agreed
to construct a dwelling for plaintiff according to certain plans
and specifications, on a certain-described lot owned by plaintiff.
This action does not involve a sale.”).
In this case, the parties did not file a copy of the full
agreement between Landis and Notre Dame. However, a portion of the
contract

names

Notre

Dame

as

the

owner

and

Landis

as

the

contractor. (Rec. Doc. 38-2.) The agreement specifies Landis’
scope of work as follows: (1) restoration and rehabilitation of
the existing building at 412 Girod Street; (2) building a new twostory structure next door, including an unfinished shell space on
the first floor, two finished condo units on the second floor, and
18

a pool on the roof; (3) building a new one-story structure along
Girod Street; (4) building a new eight-story structure at 425 Notre
Dame Street, including a lobby and main entrance on the first
floor, a parking garage on the first through third floors, an
amenities area on the third floor, and finished condo units on
floors four through eight. Id.
While

the

Court

does

not

have

access

to

the

complete

agreement, it is clear that Landis and Notre Dame intended it to
be a contract to build, not a contract of sale. Landis’ fundamental
obligation was to furnish labor and skill in building and restoring
the specified structures, not just to sell materials. At least two
of the Duhon factors are satisfied because Notre Dame exercised
some

control

over

the

specifications

of

the

project,

and

negotiations took place before the buildings were constructed. The
contract also seems to contemplate that Landis will furnish the
skill and labor to complete the project. Finally, under the rule
articulated in Parker, the contract was a contract to build because
Notre Dame already owned the properties on which Landis was to
construct the buildings.
Because the contract between Landis and Notre Dame was a
building contract, Landis is not the seller of the redhibitory
product and cannot be held liable in solido with Kolbe and Grand
Openings. However, Kolbe and Grand Openings argue that Landis can
be liable in redhibition as a component part manufacturer, not
19

merely

as

a

seller.

If

Landis

can

indeed

be

considered

a

manufacturer, any work it performed on the windows occurred outside
the chain of title linking Notre Dame to Kolbe. Notre Dame entered
into a contract to build with Landis. Pursuant to that agreement,
Landis purchased the windows from Grand Openings on Notre Dame’s
behalf. 4

Grand

Openings

then

contracted

with

Kolbe,

the

manufacturer of the windows.
The purchase agreement between Landis and Grand Openings was
consummated when the windows were delivered to Landis. Thus, the
redhibition claim arose at this moment. See La. Civ. Code art.
2530

(“The

warranty

against

redhibitory

defects

covers

only

defects that exist at the time of delivery.”). If Notre Dame were
to sue Landis for its role in installing the windows, its claims
would arise under the building contract, not under the Purchase
Order. Because Landis and Notre Dame did not enter into a contract
of sale, Landis cannot be solidarily liable in redhibition with
Grand Openings and Kolbe. To reiterate, “[r]edhibition is not so
much directed toward who is at fault in causing the vice to exist

4

At this time, the Court does not decide whether Landis acted as Notre Dame’s

agent in the transaction, or whether Landis should be considered the ultimate
purchaser of the windows. This decision will impact Notre Dame’s ability to
bring redhibition claims against Kolbe and Grand Openings, an issue that is not
presently before the Court.

20

but is directed toward the Warranty of the seller against vices in
the thing sold.” Cox, 367 So. 2d at 426.
The cases cited by Kolbe do not hold to the contrary. 5 These
cases hold that a co-manufacturer can be solidarily liable in
redhibition for a defective product purchased by a buyer. See id.
In

several

cases,

the

courts

held

vendor-builders

liable

as

manufacturers in redhibition. Schamens, 326 So. 2d at 622; see
Cipriano, 84 So. 2d at 824. However, all of the cases involve
contracts of sale. Without an underlying contract of sale between
Landis and Notre Dame, it is simply impossible for Landis to be
liable to Notre Dame for redhibition or breach of warranty of
fitness

for

ordinary

use,

whether

as

a

seller

or

as

a

co-

manufacturer.
Solidary liability does not arise under these facts between
Third-Party

Plaintiffs

third-party

demands

5

for

and

Third-Party

contribution

Defendants.

and

indemnity

Thus,
cannot

the
be

See Spillers v. Montgomery Ward & Co., Inc., 294 So. 2d 803, 805 (La. 1974);

Cipriano v. Superior Realty & Construction Corp., 84 So. 2d 822, 824 (La. 1956);
Tuminello v. Mawby, 57 So. 2d 666, 666-67 (La. 1952); Foust v. McKnight, 675
So. 2d 1147, 1148 (La. Ct. App. 1996); Goodman v. Roberts, 587 So. 2d 807, 809
(La. Ct. App. 1991); Hosteler v. W. Gray & Co., Inc., 523 So. 2d 1359, 1361-62
(La. Ct. App. 1988); Amin v. Head, 419 So. 2d 529, 530-32 (La. Ct. App. 1982);
Capitol City Leasing Corp. v. Hill, 394 So. 2d 1264, 1268 (La. Ct. App. 1981);
Schamens v. Crow, 326 So. 2d 621, 622 (La. Ct. App. 1976).

21

maintained. Kolbe and Grand Openings are attempting to use thirdparty claims to assert that they are not responsible for Notre
Dame’s damages, but that Landis, Southern Steel, and McInerney are
at fault. In effect, Defendants are claiming, “It was him, not
me.” This is an improper use of the third-party claim. Because
Defendants

have

no

legal

basis

for

claiming

contribution

or

indemnity, the Third-Party Defendants’ motions to dismiss must be
granted. 6
CONCLUSION
Accordingly,
IT IS HEREBY ORDERED that the motions to dismiss filed by
Landis, Southern Steel, and McInerney (Rec. Docs. 36, 42, 48, 49)
are GRANTED. Landis’ Motions to Stay Pending Arbitration (Rec.
Docs. 38, 45) are DENIED as moot.
IT IS FURTHER ORDERED that the motions for leave to file reply
filed by Landis, Southern Steel, and McInerney (Rec. Docs. 58,
60, 61, 63, 65, 66) are DENIED as moot.
New Orleans, Louisiana this 16th day of December, 2015.

____________________________
CARL J. BARBIER
UNITED STATES DISTRICT JUDGE
6

Because Defendants’ claims against Third-Party Defendants will be dismissed,

it is unnecessary for this Court to consider Landis’ alternative Motion to Stay.

22