
    The FIVE M. PALMER TRUST, et al. v. CLOVER CONTRACTORS, INC., et al.
    No. CA-6796.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 15, 1987.
    
      Leonard A. Washofsky, Washofsky, Angelico & Credo, New Orleans, for plaintiff.
    Ewell E. Eagan, Jr., Gordon, Arata, McCollam, Stuart & Duplantis, New Orleans, for defendant.
    Before SCHOTT, WARD and WILLIAMS, JJ.
   SCHOTT, Judge.

This is a claim by the owner of a building for damages resulting from the defective installation of the roof on the building by defendant. From a judgment in plaintiff’s favor for $154,322 defendant has appealed. The issues are whether plaintiff’s formal acceptance of the project precludes recovery based upon defects discovered after acceptance and whether plaintiff is entitled to a new roof as opposed to repairs to the existing roof.

Pursuant to a contract between the parties defendant constructed a large metal building on plaintiff’s property between 1977 and 1979. In March, 1979, pursuant to its architect’s recommendation, plaintiff formally accepted the building. Shortly af-terwards the roof began leaking. Defendant made several attempts to stop the leaking but never succeeded. Finally, plaintiff employed an expert who was of the opinion that the roof could not be repaired satisfactorily and that a new roof had to be installed over the existing roof. Defendant’s witnesses gave conflicting testimony as to the extent and duration of the leaking and the proper method of repairing the damage.

At the conclusion of the trial the judge dictated into the record his reasons for judgment which contain the following findings:

“The first issue is whether or not the roof was defective and negligently installed by the contractor. And the evidence on that issue is massively over-whelming_ Both from the direct evidence and from the photographs every time it rains there are innumerable multiple leaks throughout the entire struc-ture_ And, of course, everyone knows that a roof is supposed to be waterproof and watertight, which roof failed miserably to accomplish that goal.”

The court also made findings as to the precise defects which caused the roof to leak. These included defective flashing along the parapet wall, the failure to allow for thermal expansion, holes around the skylights, and additional roof damage which resulted from attempts by defendant to repair earlier discovered leaks.

In discussing the amount to be awarded the court rejected plaintiff’s argument for removal of the old roof and installation of a new one as well as defendant’s for additional repairs. He found that “the most reasonable and most effective” remedy was the application of a “retro-roof” to the existing roof.

With respect to these factual findings and conclusions the question on appeal is whether this court finds them manifestly erroneous after reviewing all of the evidence in the record. On the question of the existence of the leaks the trial court chose to believe plaintiff’s witnesses. Such a credibility determination will not be disturbed on appeal. On the question of the proper remedy both sides offered expert testimony.

Plaintiff’s principal expert McCaskell, had twenty-six years of experience in the construction and repair of metal buildings. Based upon an inspection of this building in 1983 and a review of the plans and specifications of the building he listed numerous defects including the absence of slotted holes to allow for thermal expansion, the wrong fasteners or screws, missing counter flashing along the valley gutters, no expansion joints in the gutters, improper junction between the downspots and valley gutters, no flashing next to the parapet, holes in the ridge cap, improper installation of screws and mastic around the skylights, excess screws and screws in the wrong places around the panels, and improper installation of the sheeting. He opined that the condition of the roof was such that it could not be repaired and a retro-roof was the only satisfactory solution for the leaks.

Defendant’s expert, Malcolm Carter, rejected the retro-roof solution as too expensive and recommended re-working all of the screws on the roof with some other specific repairs. However, he never physically inspected the building and he stated that he would not make a firm determination without personally inspecting the roof. He also seemed to acknowledge that the failure to allow for thermal expansion would lead to problems in the roof.

The trial judge rejected Carter’s testimony as “speculative” and “because he admitted he had never actually inspected the full extent of the damage.” Furthermore, the trial judge specifically rejected Carter’s “repair approach ... because [Carter] did not have sufficient expertise to justify that.”

Expert testimony is to be weighed by the trial court and where such testimony differs it is largely a matter of fact for the trial court to resolve. State v. Wilco Const. Co., Inc., 393 So.2d 885 (La.App. 4th Cir.1981). From our review of the testimony we find no error in the trial court’s acceptance of McCaskell over Carter. Thus, plaintiff is entitled to the retro-roof solution recommended by McCaskell. We are not persuaded by defendant’s argument that this somehow rewards plaintiff with a new roof after using the old roof for over seven years. The fact is that plaintiff never got the roof it paid for in the first place, and it has suffered with a roof that leaked continuously since it was installed despite repeated attempts by defendant to repair the roof which were not only unsuccessful but which aggravated the problem.

Finally, defendant contends that plaintiff waived its right to recover for defects in the roof when it formally accepted the building. Defendant relies upon State v. Wilco Const. Co. Inc., supra, in support of this proposition. In the cited case the court rejected the State’s claim for hardware which was missing or not working because these deficiencies were readily apparent when the building was accepted.

However, the court stated:

“Despite acceptance, however, an owner may recover for defects not readily discoverable by ordinary inspection or for defects that manifest themselves subsequent to the acceptance ...” 393 So.2d at 897.

We conclude that the acceptance by plaintiff did not constitute a waiver of its warranty against a defective leaking roof.

Accordingly, the judgment is affirmed.

AFFIRMED.

WILLIAMS, J., dissents with reasons.

WILLIAMS, Judge,

dissenting.

The trial court determined that the roof was defective and negligently installed by the contractor. The evidence indicates that there was leaking up until the time of the suit. The trial judge determined that from the time of its installation the roof was neither waterproof nor watertight. Although the majority states that the attempts to stop the leaking were unsuccessful, whether the roof was leaking at time of trial is disputed. Clover claims that after a June, 1984 visit to the building the roof was repaired. Although at the time of trial Mr. Palmer, the settlor of the trust, complained of many three-to-five inch holes throughout the roof, it should be noted that subsequent to the aforementioned visit no complaints were received by Clover, nor is there evidence that any other contractor was called to repair any alleged roof defects in late 1984, 1985, or 1986. Furthermore, Mr. Palmer was the only witness to testify as to the existence of these large holes and his testimony was contradicted by his own witness, Mr. McCaskell, who indicated that he did not see these alleged holes. On the basis of the testimony, I question the existence of leaks after Clover made repairs in 1984.

The trial judge determined that there were multiple reasons for the failure of the roof and that the evidence was sufficient to support the claim of defects. I agree that the roof failed in several respects, including leaks along the parapet wall, in several of the roof panels, and along the ridge line. Insofaras the trial court found that there were defects which must be repaired the ruling should not be disturbed; however, the award as determined by the trial judge and affirmed by the majority is not supported by the evidence.

Plaintiff presented a case premised upon the replacement of the roof as the appropriate remedy rather than presenting evidence regarding the possible repair of the roof. The trial court and the majority erroneously accepted this proposition.

I believe that reroofing would be appropriate only if the roof could not be repaired to stop any leaking due to faulty construction or if the cost to repair would be more than the cost to reroof. Although plaintiff is entitled to a roof that does not leak, it does not necessarily follow that plaintiff can demand a new roof. If repairs can be made there is no need for a new roof, unless reroofing cost less than repairing. Further, the evidence does not establish that the leaks now complained of are the same leaks that plaintiff complained of originally. The roof carried a one year warranty which would cover defects in the roof during the one year period after installation. Evidently there were leaks and Clover repaired such leaks. There is not sufficient evidence in the record to indicate that the later leaks occurred at the same locations, other than the problems along the parapet wall. The plaintiff did not present evidence of the actual location of the leaks. Without such evidence, the trial court has apparently extended the one year warranty to cover seven years and any leak that occurred in the roof during that period; by doing this the trial court and the majority of this panel have made Clover an absolute warrantor of the roof.

To find that plaintiff is entitled to a replacement roof is not consistent with the evidence. Plaintiff’s expert, Mr. Spada-fora, who examined the roof during the rain, testified that there were some holes in the skylight panels and ten or twelve leaks at screw holes in the warehouse roof. To remedy the problem of leaks in the screw holes he suggested replacing the screws and covering the screw heads or plugging the holes. Witnesses called by the defendant also testified that the leaks can be repaired. I would award plaintiff only that amount necessary to repair the existing leaks.  