when appeals the judge been rendered in the middle district of louisiana oh and a jury trial completed in november of two thousand and eighteen the jury rendered a verdict finding that the plaintiffs mr or mrs leo knew or against jelled women are prescribed and must be dismissed this litigation stems from a water intrusion issues at the plaintiffs homes they built a home in heaven in two thousand and eight they moved in in two thousand and eight and immediately upon moving in they began experiencing water intrusion issues they contacted the general contractor who built the home who performed inspections and proposed solutions for the next several years the water intrusion issues continued and the evidence of a problem with the windows mounted in two thousand and twelve a leak detection company told the leo there was an issue with the seal around the windows in march of two thousand and thirteen the plaintiffs made a claim to gel when alleging that water was getting into their home through the windows in plaintiff's own words on march th of two thousand and thirteen they said we believe some of the water leak issues to be a defect in the window itself the jury heard that evidence the jury heard the leos own statements stating that they believed as of march two thousand and thirteen they believed there was a defect in the window and they determined that the plaintiffs therefore knew before august th two thousand and fifteen that there was a defect in the window and under the read additional law in louisiana they had a one year period of time to file a lawsuit  asserting those ready vittori defect claims their lawsuit against joel one was not filed until august th of two thousand and sixteen which was more than three years after the plaintiffs themselves reported a defect in the window to jell and so in this case why is it important to enforce the prescriptive period or statute of limitations the plaintiffs filed the lawsuit against their general contractor in november of two thousand and thirteen almost three years before they sued joe that litigation against the general contractor was stayed in favor of arbitration the general contractor brought in all the sub contractors who were involved in building the leo's homes ultimately the arbitration ended in a settlement that was finalized around july of two thousand fifteen shortly before the plaintiffs turned their attention again to jell when to assert claims related to defects in the windows mr davies yes judge  you're correct in the jury was correct that the one year statute of limitations applied for the retore claims what how does that affect if at all the br more saved case from the louisiana four circuit that we cited in our brief talks about that distinction and points out that there actually is none when the damages arise in red a vision so  name for redivision is the same as a claim for breach of warranty when the damages sought are for those in recognition in particular the th circuit held because damages caused by a breach of warranty are founded not a contract as the case here it wasn't found in contract but in read of bishan they are subject to this prescriptive period for the redivision claims and i think your honor may be looking at the verdict form where we've got item number two a factual determination for the jury to decide whether or not the retore defect was known or should have been known to the plaintiffs at a certain date that is that is merely a factual determination that the parties asked the jury to make a noted in the leos briefing there was comments about the jury not finding that the breach of warranty claims were scribed but the jury was never asked to make that legal determination because that's that's what that is it's a legal determination as to whether or not a claim is prescribed they were merely asked to make the factual determination failed to form its obligations and that that's what gives rise to the breach of warranty not the defect in the product itself the damages are the same and that is precisely what the bar say pork is is referencing we believe because it damages arising from the alleged breach of warranty and failure to inspect and failure to repair those damages would be the same as  in general terms you're saying i did not get what i paid for so you all may purchase price that's very simplistic regional warranty they're seeking direct damages and cetera that they're not precluded by this warranty and i don't see why you're saying that the damages are the same the damage is already bishan would be approximately thirty seven thousand dollars and also they paid for the windows but the but the jury funding for the damages  we believe that all of the claims are prescribe and the case should be dismissed ok let's get past that to why you're saying that if they do prevail on bridge warranty that they can only recover the purchase price of the ones the terms of the warranty itself the warranty provides this sole and exclusive remedy with respect to any and all laugh losses or damages shall be specified above and then it specified says we are unable to provide replacement parts and repair is not practicable or cannot be made timely then we we will refund the purchase price i'd need to point out that a read of vision claim would entitle the plaintiffs to a far greater relief than was provided under the warranty and that's why question free of the rest of that falls to us about you cannot recover for certain damages read that to is not liable for right to go ahead normal wear and tear natural weathering of surfaces naturally occurring corrosion tarnishing of hardware finishes damages to services caused by chemicals glass break incidental or consequential damages right doesn't say anything about carbon direct them but it also specifies exactly what is covered if replacement cannot be made is not practicable or  cannot be made timely and if so the damages that could be recovered on a successful redivision claim and it's not for scribes would would exceed the items mentioned in the warranty and that includes investigative costs and it's all on the on the verdict form loss of enjoyment mental anguish all those items could be recovered in red a bishan and that's why these plaintiffs sued in redivision because the warranty  did not provide recovery for those types of damages and in looking at the verdict form that's precisely why there's only one line where it says breach of warranty because you or do you think judge jackson went and louisiana law provides that of breach of warranty claim is subsumed in a redivision claim and it needs to be treated as a redivision claim for purposes of prescription and that's because the marsay case found that any claim that's brought just because there is a warranty doesn't mean that is a breach of warranty claim if the damages allegedly sustained were the result of a red hit tory defect and that's precisely what this case is and the more safe case is is practically one hundred percent on point because you've got in fact a window manufacturer in that case where a general contractor brings them in but they brought them in three years after they knew or should have known of a problem with the windows and the th circuit in that case said well there may be a one hundred and two thousand and thirty year warranty on the windows but it doesn't matter because the basis of your claim is red h defects in the windows and that those are the damages you're trying to seek and because in louisiana we allow for much broader recovery in red edition the legislature wanted a one year prescriptive period on redivision plans and in fact this core held that that that's the way they should be treated as well there's a reason why there's a one year prescriptive period for redivision claims and this court found that in the p not have the vice claim and the reason that that's significant in this case is because the plaintiffs filed a lawsuit against their general contractor and spent two years really gating that lawsuit involving sub contractors i mean insurance companies and jail when was kept out of that gel when was not involved despite gel in being referenced in the petition itself nine times and so jel when is is on the sidelines of that lawsuit and the issues are being litigated about improper installation rufin issues other problems defects in the home construction as well as major storms that impacted the home so those parties litigate those issues jones kept on the sidelines and they'll ultimately reach a global settlement the amount of which was excluded from the trial but it's in the appe when did not have a chance to participate in those that lawsuit and do the discovery and do the investigation from that two thousand and thirteen lawsuit and that is precisely why or the reason why that there is there's a prescriptive period of one year because i guess it's just as a matter of curiosity couldn't they have brought him in if they'd chosen to under some sort of responsible rd party theory to this louisiana have the s listed in a blank somewhere where they're not actually a party but they're a rd party who's responsible so that lessens the responsibility of those involved yes and that's precisely what happened in this case except  the plane of sued the general contractor the general contractor in turn sued you know four or five different subcontractors to bring them in you know basically a shotgun approach saying we're not liable for the water intrusion issues you are liable manufacturers such as job when for economic damages is not covered in red edition and not caused by the product itself it may bring a breach of contract claim for those damages and this is  illustrates the point that more say was making and that is that judge james found if you've got damages as a buyer of products that are not caused by the product itself then you can make your separate breach of warranty or breach of contract claim in this case the plaintiffs suit elwyn for the damage caused by the windows themselves there is no separate item of damages for breach of warranty big they're claiming that they were caused by the items themselves and i believe that the c innovation case was actually based on fraud i think the judge james allowed the case to proceed as two of fraud in contract type theory as opposed to the damage caused by the product itself thank you mr davis you've saved time for rebuttal i thank you manufacturer who produces and sells a product that is as a defect is liable for return of the purchase price with interest damages and reasonable attorney's fees in this case the jury held that job when breached it more express warranty against the facts of the claim was timely contrary to representation by jail when and they awarded the plaintiffs a lump sum in damages the trial court then failed to award return of the purchase price or attorney defenses to this position one is prescription and the other d is waiver i'll start with with prescription but i just about starting with where you agree under certain circumstances renovation and rach we have a defect in a window a window by its very nature is supposed to stop the water from coming in and they didn't do that that's not an issue that's within this express warranty express warranty governs against things such as rots premature deterioration these are these are wood windows with aluminum cladding outside and so they have this warranty on their wood that you install these wooden windows they won't rot and decay for twenty years well during the course of the we absolutely manufacturer and the brakes go out and have a defect in them and you fail to bring a lawsuit on the brakes will later on you find that there is a defect in the airbags well the failure to bring a claim on your brakes does not affect your claim having to do with airbags these are entirely separate claims for different defects in the windows and for different failures of jail and so job one size the local model gather and say well because the jury found that the water intrusion claim was prescribed well it must have found that all the claims are prescribed and that's not the case the the the the rotten wood claim was not discovered until after the lawsuit was filed it was it was in discovery it was in the  the warranty that you set in your express warranty it doesn't have the qualities that you said that it had and that's that's what happened here and so jel when as is their prescription argument that look under louisiana law there is a louisiana supreme court case directly on point it's even a water intrusion case it's you know it's there that there's a question asked of the source of the  water prescription doesn't begin to run that's jordan versus employee transfer there's a beth israel is a very similar case there was a roof leak in the best beth israel case for years it went on they were investigating they've actually filed a suit against cases are just inherently challenging to determine one where's the water coming from and you see that in this case these these plaintiffs spent literally hundreds of thousands of dollars trying to track down and fix this issue until it was finally figured out exactly what the ca the the jury did not agree with your timeline so why aren't you stuck on that that the did you know there is some evidence that they kayla e mails to said believe the water issues to be a defect in the window itself back in march of two thousand and thirteen there is that evidence in the record in the jury can choose whether to believe that or to believe that it's after years experts study and september of two thousand and fifteen i guess it isn't the jury free to believe either one of those i don't think that thinking there's a defect is the standard you have to have knowledge of you have to discover the defect there's no mention of a defective weatherstripping in that e mail this is the  manufacturer they would say no we don't think that's what it is if i only take that to somebody else they document yep that's what it is it is the court said restriction runs when you discover what the defect in the product is and so we think i have ignored some of the termed calls and beings during the time period in which they could have found it out and which they were already suspicious but it was act didn't they nor a series of inquiries one of the defendants customer service and been on for twenty four and then in seven hundred and twenty three they called again and they said call the provider and then they didn't call they have several times where they could have done something after they thought it might be the you're i think the record will show they absolutely did something that they had experts water version experts to their home in that time period and those experts determined that one it was difficult to determine and so they soon what the experts are telling them right the windows might be a source but they're really pointing at other issues and so they proceed on those other issues and this exact issue comes up in the jordan case where they see the potential source of water intrusion but they think it's something else and they pursue the other thing the court says that's entirely reasonable for let to let the plan to go through this process and discover and eventually they do get to the windows eight nor is there not evidence in the record that they customer service asked for more information in march of two thousand and thirteen and then the defendant closed that request on for two thousand four hundred and thirteen because the that your client didn't provide the requested additional information is that not a fact issue in the record that the jury could have listened to that is in the record but if you will look at it that she in fact does call them back does provide the information there's an interview there with her talking about great candles in that same time period where he's entering information he doesn't say she called me but he takes an order for crank candles and they discuss the issue if you look closely at that job and never since somebody's out to inspect they don't give them a name of somebody they just say oh give us some more information later on she calls them again and says hey what's what's the story on this and that at that point they say oh go talk to these window people well she contacts other people she has her general contractor inspect he has water choosing experts and inspect and then she moves forward with the claims that she believed were valid her general contractor provided her a quote to repair all the issues about sixty grand and one thousand five hundred dollars of that was related to the windows but it's about cleaning windows it's not about fixing fee given the verdict form and i don't see anything in the record that says the beach or if the parties agreed with the court to wait and do it turn he speeds after the main trial so why do we get to come core that the terms fees would not be placed on the jury very well that the court would determine that if you look at the record you gave me a minute i could i could cite you exactly to where that's at in the record but that was pulled out from the jury verdict form and the court took that and was that was going to decide i think and that was on the warranty claim as well as on the read of bishan claim that was but the court agreed that no matter what basis the attorney's fees would be awarded under the court would take it up on the back in of a hearing or something or let's just mid affidavits yes ma'am but the walls of the same and that's where i think we agree is that if whether you're bringing in a breach of it for us warranty against defects oh no we can't hear you all the sudden think you're signals gotten a little bad right now what is it that they're not going to put on attorneys fees under what cause of action or claim it's not specified it just says that the court is not putting attorney's fees to the jury it's really all  the right to recover under louisiana law a waiver of red a bishan has to be express must reference specifically wave red a bishop in the waivers of other warranties are implied warranties here there's no waiver of attorney's fees there's no waiver of direct damages and in fact the warranty express that provides for the return of the purchase price so we think even if you take the warranties and the though the waivers the warranty it does not reach any of the remedies that are being sought the plaintiffs in fact that the warranty recognizes that you may have remit is under state law it states expressly that this warranty gives you rights you may have additional rights under state all as various best state so we don't think that there's anything in the warranty that waves anything that's being sought by the plaintiffs what is the what is the basis for so stating that the thirty  the only basis to say that is that the trial court in analyzing the award said these were all direct damages and that there was sufficient evidence presented direct damages that these could be awarded  whether or not i will say at trial there was evidence of replacement windows and costs for replacement windows in there so to the extent that is a direct damage that was awarded i think it's been awarded within that that amount and therefore we would say  we're just looking at a trial i mean attorneys fees provision or so or you can see thing that you're not trying to get the thirty something that one thousand then you're to only trying to get attorney's fees now no doubt the thirty seven thousand dollars plus interest is d under the warranty or read of bishan the question as to whether the jury could have factored in replacement windows and its limits on direct damage because i have no basis that one can't cite anything in the record that that makes up what that claim is an  really the only new damages you can say for sure would be attorneys fees and yes just maybe i we're not we're not seeking any extra damages on to what's been awarded we're just saying that under read a vision we're entitled the reward of attorney's fees the trial judge took that on and then did not awarded based off of the terminating that it was a contract claim and not a a redivision claim don't you think you should talk about the say case if if if everybody else is in talking about it yes me him say he's actually has very little to do with this case at all it is there's no question about the source of the water in the  not a question about the defects whether the person knew about the defect or not all marsay says is what i said at the opening yet reach of warranty claims are governed by red edition and the time period is not ten years  years but we think it doesn't matter we're timely under one year literally the rot the victim was discovered during the course of litigation it's there's no way you can possibly find that it was was describe in my mind but it also doesn't speak to whether the other claims were prescribed all it speaks to is it's one year not ten years the jordan case is of louisiana supreme court case that is controlling and is a water intrusion case that is much more informative and that had the plaintiffs in more states challenged and said look we don't know what the defect is we don't know whether the windows of leaking or something else is leaking i don't think the morse a case can can go the way that it's going that it when that's that's the jordan case multiple sources of water intrusion court states and so long as there's a question about the source of water intrusion you're you're not going to begin the running of e his time is what he's got about two minutes left i'm saying now counsel in light of your concession that you can say that the three hundred and thirty five doesn't include the thirty four or the what what your client paid for the windows are you also then withdrawing your plane rather bishan no sir not at all i just just saying that it can't be determined whether the jury awarded replacement windows as a direct damage then what you're seeking in effect is double recovery of them and that's what i'm that's what i'm withdrawing your honor i'm just saying i can't determine that attorney's fees is price you know i don't want we're not trying to double click is all i'm trying to say if it's your own business attorney's fees under the warranty so really there's nothing if we accept your concession there's we don't have to actually decide the timeliness of the read of bishan claim and i just mean we just have to decide whether warranties can exists in the under this contract in light of the direction about recognition claims and the war and the statute of limitations whether or not you can have these independent warranty claims that's the question before us and whether or not you should get your attorney's fees i think that's accurate your honor you're just trying to determine to read a bit of lot of bishan plots of the warranty claims which the jury determined were timely and if it does entitle to return of attorney timeliness of the warranty claim the jury did not render any decision as as to the timeliness of any of the claims the jury made a factual determination that they knew about the defect before august th of two thousand and fifteen and then as a matter of law all of the claims should be dismissed that there are thirteen years of limitations for the contract so there's no way that it's too late for that is there louisiana has a has a ten year prescriptive period for breach of  contract however the claims that are brought in to be expressed warranty are found are based in red edition and they have to make those claims within a year and that's what this court held in in p p g judge john parker in the middle district dismissed it and if is circuit upheld that decision and found that courts in louisiana has held unequivocally that actions based on breach of warranty g in marsay and in this case is a red headed tory defect and the courts have treated that as one in the same and have found that you can't wait nine years to sue for breach of warranty when the you know the fact that maher say is not as controlling or as jordan is from a factual standpoint is is a little off point to me because the jordan louisiana supreme court case had this to say prescription do not begin to run until the plane of had a reasonable reasonable basis to pursue a claim against a specific defendant that talks about the discovery rule and it does not talk about the rule followed by p p g say a breach of warranty claims based on record dettori defects are subsumed under the red hit redivision claim theory by her counsel correctly they're not really disputing that the one your rule applies they're just saying that they complied with it that that's exactly that's exactly right that is their position and what you're saying about that is that the jews lived wrote and beth israel cases were all discussed in the charge and instruction conferences courts have typically found a buyer did not have knowledge until the buyers had consulted with an expert or fact because of the problems themselves so that it was instructive based on jordan libro and beth israel the cases that plaintiff cite in their briefs and still determine factually that plaintiffs had noticed of the defect prior more than a year before filing the suit and that's the case needs to be more than a year after the facts that's where they asked the court the trial court of the middle district to dismiss the claims because the juror determined as a matter of fact they knew more than a year before filing cases to the jury is your honor he did not say cases but that was that's that's all i need counsel ok assuming argue window that there are direct the warranty language limits the recovery to the purchase price plus judicial interest and as as the parties are headed into trial they submit the verdict form which itemizes approximately eight sources of recovery and items of damages under red edition and there's no item ization under the warranty and that is a tradition that the court did not agree to take that up separately on the backend i believe that  the court and the parties did not believe that there was any potential for attorney species to be recovered under a breach of warranty period ok thank you thank you your honors we have your arguments we appreciate th