source: Caselaw Access Project

author:
PETTIGREW, J.
      KUHN, J.,

license: Public Domain

text:
    SOUTHERN INSURANCE COMPANY v. The METAL DEPOT and United Fire and Casualty Company.
    No. 2010 CA 1899.
    Court of Appeal of Louisiana, First Circuit.
    June 10, 2011.

      W. Ransom Pipes, Dustin G. Flint, Baton Rouge, LA, for Plaintiff-Appellant Southern Insurance Company.
    Carey J. Guglielmo, Stephen Dale Cronin, Baton Rouge, LA, for Defendants-Appellees The Metal Depot and United Fire and Casualty Company.
    Before KUHN, PETTIGREW, and HIGGINBOTHAM, JJ.
   PETTIGREW, J.

|2In this alleged product liability action, plaintiff-insurer appeals the trial court’s judgment granting defendant-manufacturer/contractor’s exception raising the objection of peremption and dismissing plaintiffs claim with prejudice. For the reasons that follow, we affirm.

FACTS

On March 1, 2001, PartyEtc.Com, Inc., of Hammond, Louisiana, contracted with Unique Systems of Albany, Louisiana, wherein an agreement was made for Unique Systems to construct a large warehouse in Tangipahoa Parish, Louisiana. Said contract was recorded in Tangipahoa Parish on March 7, 2001. Unique Systems designed and constructed the warehouse, and an Acceptance of Contract and Notice of Termination of Work was filed into the mortgage records on September 5, 2001.

On December 11, 2008, a snow storm hit Tangipahoa Parish, and snow accumulated on the roof of the warehouse constructed by Unique Systems. It was subsequently determined that the additional weight of the snow on the roof of the warehouse caused the main “I” beam to buckle and the roof to collapse.

ACTION OF THE TRIAL COURT

Southern Insurance Company (“Southern”) provided insurance coverage to Par-tyEtc.com, Inc., the owner of the warehouse. As a result of the roof collapse, Southern paid to or on behalf of its insured, PartyEtc.com, Inc., a substantial sum of money. Because the roof collapse allegedly resulted from the fabrication of the main “I” beam, Southern, on October 8, 2009, filed suit in accordance with the Louisiana Products Liability Act (“LPLA”)(La. R.S. 9:2800.51, et seq.) seeking subrogation against The Metal Depot, Inc., the firm that fabricated the “I” beam, and its insurer, United Fire and Casualty Company (“United Fire”). Specifically, Southern alleged that “the warehouse Isbuilding was designed, manufactured and assembled by The Metal Depot, Inc. [“Metal Depot”].”

Metal Depot and United Fire (collectively referred to as “defendants”) responded by filing along with its answer, peremptory exceptions raising objections of no cause of action, no right of action, and peremption. Defendants claimed that pursuant to La. R.S. 9:2772, Southern’s claim was time-barred by effect of law and legally nonexistent. Southern argued in response that the protections of La. R.S. 9:2772 were not applicable to defendants because (1) the failure that caused the roof collapse was a fabrication issue rather than a construction or design issue; and (2) La. R.S. 9:2772 did not protect fabricators of component parts of buildings.

Following a hearing on June 14, 2010, the trial court granted the peremptory exceptions raised by defendants without assigning reasons. From this judgment, Southern has taken a devolutive appeal.

ASSIGNMENT OF ERROR ON APPEAL

Southern contends that the trial court erred in applying the peremptive period of La. R.S. 9:2772 to Metal Depot, which was sued under the LPLA for the fabrication of a defective component part of a building.

STANDARD OF REVIEW

In connection with its appeal in this matter, Southern asks this court to conduct a de novo review of the trial court’s decision to grant the peremptory exceptions raised by defendants. In support of this contention, Southern cites Bunge North America, Inc. v. Board of Commerce & Ind., 07-1746, pp. 10-11 (La.App. 1 Cir. 5/2/08), 991 So.2d 511, 519, for the proposition that in reviewing a trial court’s ruling on a peremptory exception raising an objection of no cause of action, the appellate court should subject the case to de novo preview because the exception raises a question of law and the trial court’s decision is based only on the sufficiency of the petition. Given the facts of this case, we disagree.

The record reflects that in addition to filing peremptory exceptions objecting to plaintiffs failure to state a cause of action, as well as a right of action, defendants also filed a peremptory exception raising the objection of peremption. “Per-emption is a period of time fixed by law for the existence of a right. Unless timely exercised, the right is extinguished upon the expiration of the peremptive period.” La. Civ.Code art. 3458.

As noted by defendants, peremption is but a form of prescription, which is not subject to interruption or suspension. Flowers, Inc. v. Rausch, 364 So.2d 928, 931 (La.1978). See also, Bunge Corp. v. GATX Corp., 557 So.2d 1376, 1379 (La.1990). It is well-settled that “[w]hen prescription is raised by a peremptory exception, with evidence introduced at a hearing, the [trial] court’s finding of fact on the issue of prescription is subject to the manifest error standard of review.” Lawrence v. Our Lady of the Lake Hosp., 10-0849, p. 10 (La.App. 1 Cir. 10/29/10), 48 So.3d 1281, 1287-88. As defendants further point out, the transcript of the June 14, 2010 hearing reflects that evidence was introduced at this hearing; therefore, the applicable standard of review is manifest error.

A court of appeal may not overturn a judgment of a trial court absent an error of law or a factual finding that is manifestly erroneous or clearly wrong. See Stobart v. State, Department of Transportation and Development, 617 So.2d 880, 882, n. 2 (La.1993). If the trial court or jury findings are reasonable in light of the record reviewed in its entirety, an appellate court may not reverse even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Where there are two permissible views of the evidence, the fact-finder’s choice between them cannot be manifestly erroneous or clearly wrong. Rosell v. ESCO, 549 So.2d 840, 844 (La. 1989).

DISCUSSION

In connection with its appeal in this matter, Southern urges that as a result of the collapse of the roof of its insured’s warehouse on December 11, 2008, Southern paid for |sthe damages occasioned thereby which Southern now seeks to recover. Southern has alleged in its Petition for Damages that “the warehouse building was designed, manufactured and assembled by ... Metal Depot.” Southern also alleges that Metal Depot is liable to it for “[m]anufacturing, assembling and marketing a product which was unreasonably dangerous.” Southern further cites Zumo v. R.T. Vanderbilt Co., Inc., 527 So.2d 1074, 1077 (La.App. 1 Cir.1988), for the proposition that “[t]he prescriptive period applicable to product liability cases is one year from the date damages are sustained. (Citing La. Civ.Code art. 3492).” Accordingly, Southern claims that the instant suit filed on October 8, 2009, is timely.

By way of response, defendants assert that application of La. R.S. 9:2772 serves to bar Southern’s claim. Louisiana Revised Statute 9:2772 provides, in pertinent part, as follows:

§ 2772. Peremptive period for actions involving deficiencies in surveying, design, supervision, or construction of immovables or improvements thereon
A. No action, whether ex contractu, ex delicto, or otherwise, including but not limited to an action ... to recover damages, or otherwise arising out of an engagement of planning, construction, design, or building immovable ... property ... shall be brought against any person ... performing or furnishing the design, planning, supervision, inspection, or observation of construction or the construction of im-movables, or improvement to immovable property ...
(l)(a) More than five years after the date of registry in the mortgage office of acceptance of the work by the owner.
B. (1) The causes which are perempted within the time described above include any action:
(a.) For any deficiency ... in the construction of any improvement to immovable properly.
(b.) For damage to property, movable or immovable, arising out of such deficiency.
(2) Deficiency, as used in this Section, includes failure to warn the owner of any dangerous or hazardous condition, regardless of when knowledge of the danger or hazard is obtained or should have been obtained.
(3) This peremptive period shall extend to every demand, whether brought by direct action or for contribution or indemnity or by third-party practice, and whether brought by the owner or by any other person.

Defendants submit that “[i]t is uncontested that Metal Depot was doing business as Unique Systems.” Although Southern alleged in its petition that “the warehouse | (¡building was designed, manufactured and assembled by [Metal Depot]”, Southern claims in its brief that it is only asserting claims against Metal Depot “in its capacity as manufacturer of the component part “I” beam.” Defendants aver that such a “limitation” does not operate to bar application of La. R.S. 9:2772 to the present facts.

Defendants point out that the first paragraph of the statute states that it is applicable to any and all actions “whether ex contractu, ex delicto, or otherwise.... ” Relying on the “or otherwise” provision of La. R.S. 9:2772, defendants argue that this language indicates all claims are subject to the peremption statute, including claims made under the LPLA. Defendants assert that because Metal Depot “designed, manufactured, and assembled” the structure that was damaged, it is entitled to “wear two hats” and in its dual capacity as contractor and as the manufacturer of a component part, avail itself of the peremp-tive relief afforded by La. R.S. 9:2772. It is the position of defendants that the jurisprudence clearly supports this interpretation and the ruling of the trial court.

In its brief to this court, Southern cites and relies upon Jones v. Crane Co., 26,781, p. 6 (La.App. 2 Cir. 4/5/95), 653 So.2d 822, 826-827 and DéWoody v. Citgo Petroleum Corp., 604 So.2d 92, 99 (La.App. 3 Cir.), units denied, 605 So.2d 1369, 1372 (La. 1992), for the proposition that a defendant which manufactures a component part of an immovable is not entitled to avail itself of the peremptive period protection established by La. R.S. 9:2772, because said manufacturers are not contractors. Defendants respond that unlike Crane Co. and Nelson (the defendant in DeWoody), Metal Depot was not merely the “manufacturer” of the component “I” beam, it was also the “contractor” of the building into which the beam was integrated. Defendants aver that there is no jurisprudential rule that prohibits a contractor that manufactures or fabricates some or all of the components integrated or installed into the construction of an immovable from availing itself of the peremptive relief afforded by La. R.S. 9:2772. We agree. The trial court was correct in maintaining the exceptions filed by defendants.

CONCLUSION

For the above and foregoing reasons, the judgment of the trial court maintaining the exceptions filed by defendants, The Metal Depot and United Fire and Casualty 17Company, is hereby affirmed. All costs associated with this appeal shall be assessed against plaintiff-appellant, Southern Insurance Company.

AFFIRMED.

KUHN, J., dissents with reasons.

KUHN, J.,

dissenting.

|]The majority errs in broadly interpreting the peremption exception contained in La. R.S. 9:2772. It is well settled that preemptive statutes are strictly construed against peremption and in favor of upholding the claim that is alleged to be extinguished. Of the possible constructions, the one that maintains enforcement of the claim or action, rather than the one that bars enforcement, should be adopted. Albach v. Kennedy, 00-0636, p. 9 (La.App. 1st Cir.8/6/01), 801 So.2d 476, 482, writ denied, 01-2499 (La.10/12/01), 799 So.2d 1138.

Here, the parties do not contest that the “I” beams that were used in the construction of the warehouse were fabricated by The Metal Depot and that The Metal Depot was doing business as Unique Systems. While Unique Systems designed and constructed the building in question, The Metal Depot fabricated the steel component parts for the building. Southern has alleged and supported its position that the warehouse collapse was caused by the buckling of the main “I” beam. The Metal Depot was sued in its capacity as the manufacturer of the “I” beam. Southern has not alleged that The Metal Depot is at fault for any actions or inactions in its capacity as a contractor.

The Louisiana Products Liability Act, La. R.S. 9:2800.51 et. seq., sets forth the “exclusive theories of liability for manufacturers for damage caused by their products.” La. R.S. 9:2800.52. Southern’s cause of action against The Metal Depot for its alleged liability for fabricating the defective “I” beam is not |2perempted under the terms of La. R.S. 9:2772, because such peremption applies only to a person or entity that performs the activities specified therein. Although any claims by Southern against The Metal Depot for the “design” or “construction” of the building would be preempted, the statute does not extend this peremption to those who manufacture defective products. See Burmaster v. Gravity Drainage Dist., 366 So.2d 1381, 1386 (La.1978). La. R.S. 9:2772 does not expressly apply to manufacturers of component parts of immovable property, and the LPLA does not include a similar preemptive period. Whether an entity is protected by La. R.S. 9:2772 should depend on the nature of the action brought, i.e. whether it is an action seeking recovery for a construction/design defect in a building or an action seeking recovery for the defective manufacturing of a component part of the building. The Metal Depot should not be afforded the protection of this peremptive period based simply on the fact that it acted in the capacity of a contractor as well as a manufacturer.

      . Throughout this litigation, both parties have treated Unique Systems, the contractor of the warehouse, and The Metal Depot, the firm which fabricated the "I" beam used in the warehouse, as the same company, as that is what has been alleged; and that is, upon information and belief, the manner in which these entities operated. According to the representatives of the parties. The Metal Depot was doing business as Unique Systems and was not a separate legal entity.


author: WELCH, J.

text:
    Brenda GRIFFIN v. LANDMARK OF BATON ROUGE, LLC.
    No. 2011 CA 0063.
    Court of Appeal of Louisiana, First Circuit.
    June 10, 2011.

      Christopher T. Cascio, Baton Rouge,. LA, Attorney for Plaintiff-Appellee Brenda Griffin.
    Lawrence Frieman, Metairie, LA, Attorney for Defendant-Appellant Landmark of Baton Rouge.
    Before CARTER, C.J., GAIDRY and WELCH, JJ.
   WELCH, J.

|zLandmark of Baton Rouge, LLC (Landmark), appeals that portion of a judgment rendered in favor of Brenda Griffin, awarding her workers’ compensation disability benefits, penalties and attorney fees. Mrs. Griffin also appeals, challenging the sufficiency of the disability benefit award and the partial denial of her claim for penalties and attorney fees. For the reasons that follow, we affirm.

On March 17, 2009, Mrs. Griffin filed this disputed claim for workers’ compensation benefits in the Office of Workers’ Compensation against her employer, Landmark. Therein, Mrs. Griffin, who worked as a cook, asserted that on August 12, 2008, she injured her back while attempting to lift a pot to bring to a table. M. Griffin sought medical treatment and continued to work until December 30, 2008. Landmark paid her temporary total disability from that date through February 21, 2009, when it terminated such benefits. It also paid certain medical expenses, but terminated those benefits in April or May of 2009. Landmark also refused to pay for medical expenses incurred by Mrs. Griffin during her treatment with Dr. Sandra Weitz, a pain management specialist, and refused to authorize a functional capacity evaluation recommended by Dr. Weitz. Mrs. Griffin challenged the termination of her indemnity benefits, Landmark’s failure to pay certain medical expenses, and its refusal to authorize the physician of her choice. She also sought to recover penalties and attorney fees for termination of her indemnity and medical benefits.

Landmark denied that a work accident occurred. It also claimed that Mrs. Griffin was not entitled to indemnity benefits after February 21, 2009, because she had been released to return to work with certain restrictions and because Landmark offered her a job as a dishwasher meeting those |,^restrictions and paying her 90% or more of her alleged pre-injury wage. Landmark also claimed that Mrs. Griffin had no work-related disability, was able to return to gainful employment, and was not in need of further medical treatment or physical therapy. Landmark further asserted that Mrs. Griffin forfeited her right to workers’ compensation benefits under La. R.S. 23:1208 by overstating the mileage she travelled on doctor’s visits and to fill prescription medications on reimbursement forms.

Following a bench trial held on June 2, 2010, the Workers’ Compensation Judge (WCJ) made the following findings: (1) Mrs. Griffin injured her lower back by accident in the course and scope of her employment with Landmark; (2) Mrs. Griffin’s average weekly wage was $322.00, providing an indemnity rate of $216.66; (3) Mrs. Griffin was not entitled to supplemental earnings benefits (SEB) from February 21, 2009, through August 24, 2009; (4) Mrs. Griffin is entitled to SEB from August 24, 2009, through the day of the trial in the amount of $8,814.38; and (5) Mrs. Griffin did not violate La. R.S. 23:1208. The WCJ awarded. Mrs. Griffin medical treatment with the pain management specialist of her choice, all outstanding medical expenses, penalties in the amount of $2,000.00 and attorney fees in the amount of $6,000.00 for the termination of medical benefits, but declined to award any such amounts with respect to the termination of indemnity benefits.

Landmark appealed, challenging the WCJ’s findings that Mrs. Griffin sustained an accident at work on the basis that Mrs. Griffin’s testimony that she injured her back while working is unbelievable and unreliable. Landmark challenges the WCJ’s award of disability benefits on the basis that the WCJ misread the medical testimony and because it offered Mrs. Griffin the job of dishwasher paying 90% of her pre-injury wages. Landmark also contends 14that the WCJ erred in awarding penalties and attorney fees for its termination of medical benefits, claiming that decision was based on its reasonable belief that Mrs. Griffin did not hurt her back at work. Lastly, Landmark contests the WCJ’s failure to find that Mrs. Griffin forfeited her right to workers’ compensation benefits by submitting false mileage forms.

Mrs. Griffin answered the appeal, urging that the WCJ erred in finding she was not entitled to benefits from February 21, 2009, through, August 24, 2009, and in not awarding her penalties and attorney fees for the termination of her indemnity benefits. She also asked for an increase in the amount of penalties and attorney’s fees awarded by the trial court and an award of attorney fees for work performed in responding to this appeal.

Factual findings in a workers’ compensation case are subject to the manifest error or clearly wrong standard of appellate review. Parfait v. Gulf Island Fabrication, Inc., 97-2104, p. 4 (La.App. 1st Cir.1/6/99), 733 So.2d 11, 16. In applying this standard of review, this court does not determine whether the trier of fact was right or wrong, but whether the fact-finder’s conclusion was a reasonable one. Stobart v. State, Department of Transportation and Development, 617 So.2d 880, 882 (La.1993). Where there are two permissible views of the evidence, the faetfin-der’s choice between them cannot be manifestly erroneous or clearly wrong. Id.

All of the WCJ’s rulings challenged in this appeal involve factual determinations. Upon reviewing the record, we find that the WCJ’s factual determinations are reasonably supported therein and may not be reversed by this court. We hereby issue this memorandum opinion in compliance with Uniform Rules-Courts of Appeal Rule 2-16.1.B affirming the judgment in its entirety.

Furthermore, we find that Mrs. Griffin is entitled to additional attorney | rfees to reflect additional time and effort spent in defending Landmark’s unsuccessful appeal. See Adams v. Dependable Source Corporation, 2006-1331, p. 10 (La. App. 1st Cir.5/4/07), 961 So.2d 1183, 1189. We enter an attorney fee award in the amount of $1,000.00.

DECREE

For the foregoing reasons, the judgment is affirmed. Judgment is rendered in favor of Brenda Griffin for additional attorney fees in the amount of $1,000.00. All costs of this appeal are assessed to appellant, Landmark of Baton Rouge, LLC.

AFFIRMED.


author: JUDE G. GRAVOIS, Judge. WICKER, J., EDWARDS, J.,

text:
    PERQUE CARPET & DRAPERY, LTD. v. Tish BOUDREAUX.
    No. 10-CA-620.
    Court of Appeal of Louisiana, Fifth Circuit.
    June 14, 2011.

      J.A. “Jay” Beatmann, Jr., Attorney at Law, Metairie, LA, for Plaintiff/Appellant.
    Deanne R. Sirmon, Attorney at Law, Luling, LA, for Defendant/Appellee.
    Panel composed of Judges MARION F. EDWARDS, SUSAN M. CHEHARDY, FREDERICKA H. WICKER, JUDE G. GRAVOIS, and HILLARY J. CRAIN, Pro Tempore.
   JUDE G. GRAVOIS, Judge.

12In this suit on open account and for breach of contract, appellant Perque Carpet and Drapery, Ltd. (“Perque”) appeals a trial court judgment finding co-defendants Tish Boudreaux (“Mrs. Boudreaux”) and Lady Bird Homes, Inc. (“Lady Bird Homes”) liable to Perque for the amounts of $8,894.00 and $16,787.00, respectively, for flooring installed by Perque in Mrs. Boudreaux’s home. Perque argues on appeal that the trial court erred in applying the parol evidence rule at trial. Perque also argues that the trial court erred in not finding Mrs. Boudreaux liable for the full amount of $25,681.00 due Perque for the Boudreaux flooring job, less a credit of $1,200.00 for a payment made by Mrs. Boudreaux to Perque.

After thoroughly considering the record and the applicable law, for the reasons set forth below, we find that Mrs. Boudreaux is hable to Perque for the net amount of $24,481.00 due Perque for the Boudreaux flooring job. Accordingly, we affirm that part of the judgment that found Mrs. Bou-dreaux liable to Perque and |Hamend it to cast Mrs. Boudreaux in judgment for the net amount of $24,481.00 due Perque for the Boudreaux flooring job. Further, we reverse that part of the judgment that found Lady Bird Homes liable to Perque. We affirm the trial court’s judgment awarding Perque legal interest from date of judicial demand until paid.

FACTS AND PROCEDURAL HISTORY

On May 16, 2006, Mrs. Boudreaux and her husband entered into a written contract with Lady Bird Homes for construction of their new home in Luling, Louisiana. Mr. Nick Christiana (“Mr. Christiana”) was the owner and president of Lady Bird Homes. The initial total contract price for the home with lot was $470,551.00, which included materials, labor and supervision fee. Among other specific items, the construction contract provided the Boudreauxs with an allowance of $16,787.00 for all flooring throughout the house. Lady Bird Homes used Perque as its flooring subcontractor for the Boudreaux job. Lady Bird Homes and Perque had an unwritten open account relationship that spanned approximately ten years. Mrs. Bou-dreaux made various flooring selections that ultimately totaled $25,681.00, which was over the allowance by $8,894.00. In due course, the flooring was installed by Perque in the Boudreaux home.

By January of 2007, construction of the Boudreaux home was substantially complete. Mr. and Mrs. Boudreaux and Lady Bird Homes closed on the construction contract on January 31, 2007. At the closing, Mr. Christiana on behalf of Lady Bird Homes signed an affidavit attesting that to his knowledge and belief, there were no unpaid bills for labor or materials furnished in the construction of the Bou-dreaux home. Shortly after the closing, Mr. LChristiana/Lady Bird Homes refunded $6,618.53 to the Boudreauxs. This refund represented an overpayment or credit that was due the Boudreauxs on the building contract as of the time of the closing.

Perque asserted to Mrs. Boudreaux several weeks after the closing that it had not been paid anything for the flooring it had installed in the Boudreaux home. In May of 2007, Mrs. Boudreaux applied for financing to pay off the entire amount due to Perque. Mrs. Boudreaux’s financing application was denied. Thereafter, Per-que and Mrs. Boudreaux reached a verbal agreement for Mrs. Boudreaux to pay Per-que the entire amount due Perque over a two-year period, with Perque providing the financing “in house.” A follow-up written payment agreement to that effect dated July 12, 2007 was faxed by Perque to Mrs. Boudreaux. Mrs. Boudreaux signed the agreement. Mrs. Boudreaux subsequently made one payment of $1,200.00 to Perque on the agreement. On July 26, 2007, Per-que filed a lien against the Boudreaux homesite for the full amount of the unpaid flooring. The lien was ultimately cancelled prior to trial.

When Mrs. Boudreaux failed to make any subsequent payments to Perque, Per-que filed this suit on open account against Mrs. Boudreaux. Mrs. Boudreaux answered the suit and filed a third party demand against Lady Bird Homes. Per-que then filed an amended petition adding Lady Bird Homes as a defendant. Perque later filed a second supplemental and amending petition, adding a breach of contract claim against Mrs. Boudreaux, citing the July 12, 2007 written payment agreement between Perque and Mrs. Bou-dreaux.

Trial proceeded on February 1, 2010. Lady Bird Homes did not appear at trial, nor did Mr. Christiana. On March 80, 2010, the trial court rendered judgment in favor of Perque and against Mrs. Bou-dreaux in the amount of |5$8,894.00, representing the amount Mrs. Boudreaux exceeded her flooring allowance in the building contract. The trial court rendered an amended judgment on April 7, 2010, additionally casting Lady Bird Homes in judgment to Perque for $16,787.00, the original amount of the Boudreauxs’ flooring allowance in the building contract. Perque filed this timely appeal, praying that Mrs. Boudreaux be cast in judgment for the full amount due Perque. Lady Bird Homes did not appeal.

ANALYSIS

Law of contract interpretation

This Court, in Kappa Loyal L.L.C. v. Plaisance Dragline & Dredging Co., Inc., 08-124 (La.App. 5 Cir. 6/19/03), 848 So.2d 765, writ denied 2003-2348 (La.12/12/03), 860 So.2d 1154, summed up the law on contract interpretation as follows:

We are obligated to give legal effect to contracts according to the true intent of the parties. LSA-C.C. art. 2045. The true intent of the parties to a contract is to be determined by the words of the contract when they are clear, explicit, and lead to no absurd consequences. LSA-C.C. art. 2046. When the words of a contract are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties’ intent. LSA-C.C. art. 2046. In such cases, the meaning and intent of the parties to the written contract must be sought within the four corners of the instrument and cannot be explained or contradicted by parol evidence. LSA-C.C. art. 1848. Contracts, subject to interpretation from the instrument’s four corners without the necessity of extrinsic evidence, are to be interpreted as a matter of law, and the use of extrinsic evidence is proper only where a contract is ambiguous after an examination of the four corners of the agreement. In cases in which the contract is ambiguous, the agreement shall be construed according to the intent of the parties. Intent is an issue of fact which is to be inferred from all of the surrounding circumstances. A doubtful provision must be interpreted in light of the nature of the contract, equity, usages, the conduct of the parties before and after the formation of the contract, and other contracts of a like nature between the same parties. LSA-fC,C.(i art. 2053. Whether a contract is ambiguous or not is a question of law. Where factual findings are pertinent to the interpretation of a contract, those factual findings are not to be disturbed unless manifest error is shown.

First Assignment of Error

In its first assignment of error, Perque argues that, because in its Reasons for Judgment the trial court never found that the July 12, 2007 written payment agreement between Perque and Mrs. Bou-dreaux was ambiguous, the trial court erred in admitting parol evidence to clarify the agreement.

The agreement is in letter form on Per-que letterhead, is dated July 12, 2007, and provides as follows:

RODNEY OR TISH BOUDREAUX
102 LAC CYPRIERE
LULING, LA 70070
RODNEY OR TISH BOUDREAUX:
I AM FAXING YOU THE PAYMENTS ON LOAN FOR $25,681.00, WHICH WILL BE PAYABLE IN 24 MONTHLY PAYMENTS. PAYABLE TO PERQUE CARPET AND DRAPERY ON EQUAL MONTHLY PAYMENTS, FIRST PAYMENT DUE 07/25/07 AT $1,138.20, INTEREST RATE AT 6%. PLEASE SIGN AT THE BOTTOM AS PER AGREEMENT WITH STEWART PERQUE.

A handwritten amount of “1200.00” is written just following the text of the letter. The letter is signed by J.P. Davis of the Credit Department of Perque. The letter is also signed by Tish Boudreaux under the notation “Customer Signature as to Agreement.”

Ambiguity of written payment agreement

We agree with Perque that in its Reasons for Judgment, the trial court never found that the written payment agreement was ambiguous. We further agree with Perque that as a matter of law, the agreement is clear and not ambiguous. In the agreement, Mrs. Boudreaux clearly agreed to pay Perque the principal sum of 17$25,681.00 over a two-year period at the interest rate of 6% in equal installments of $1,138.20 per month beginning on July 25, 2007. Mrs. Boudreaux in fact subsequently made a payment of $1,200.00 to Perque pursuant to the agreement. Accordingly, because the agreement is clear and not ambiguous, we find that testimonial or other evidence should not have been admitted by the trial court to negate or vary the contents of the agreement.

Vice of Consent

Ambiguity, however, is not the only time parol evidence is allowed to explain a written contract. As noted above, LSA-C.C. art. 1848 provides that in the interest of justice, testimonial or other evidence may be admitted to prove a circumstance such as a vice of consent. Furthermore, LSA-C.C. art. 1948 provides that consent may be vitiated by error, fraud, or duress. In her Answer to Perque’s second amended and supplemental petition, Mrs. Bou-dreaux asserted that she would never have submitted her signature to the agreement “but for fraud, duress, threats and coercion” on the part of Perque. As such, we find that admission of parol evidence for the purpose of proving a vice of consent was appropriate. We must now determine, based on the evidence introduced, whether Mrs. Boudreaux has sufficiently proven a vice of consent that would vitiate her consent to the agreement.

Mrs. Boudreaux testified that she first learned in March of 2007, several weeks after the closing, that Perque had not been paid for the flooring it had installed in her home. She said she believed that Perque had been paid out of the amount tendered to Lady Bird Homes at the closing. She explained that Mr. Christiana “took care of everything” during construction; she had received no invoices from Perque, either directly or from Mr. Christiana, during the construction. All bills from Perque had gone to Mr. Christiana at Lady Bird |sHomes. She assumed that Lady Bird Homes had paid Perque, since Mr. Christi-ana had never told her before the closing that he hadn’t. She admitted that she did know, however, that she had exceeded her flooring allowance.

After Mrs. Boudreaux learned that Per-que had not been paid for the flooring, she tried calling Mr. Christiana for an explanation, but he did not return her calls. The only time she was able to speak to him was one day, several weeks after the closing, when he drove up to her house and found her and Laure Perque, the salesperson with Perque who handled Lady Bird Homes’ account and who sold Mrs. Bou-dreaux the flooring in question, in her front yard. Mrs. Boudreaux admitted that Mr. Christiana stated in front of both her and Laure that Mrs. Boudreaux was responsible for the entire payment to Perque for the flooring it had installed in the Boudreaux home, and that her response thereto was “Okay.” She testified, however, that she thought Mr. Christiana meant only the amount she exceeded her flooring allowance, not the entire amount.

According to Mrs. Boudreaux, things then “got ugly” with Perque calling her repeatedly for payment, culminating in her filling out a financing agreement application with American General Finance Services on May 31, 2007. When her loan application with American General was denied, she entered into the written payment agreement with Perque to “buy more time” to settle the matter with Mr. Christi-ana and also to prevent Perque from placing a lien on her home, as allegedly promised by Stewart Perque, a co-owner of Perque. Mrs. Boudreaux testified that the situation caused her significant stress that required medical treatment.

Both Laure Perque and Stewart Perque testified at trial. Laure testified that though Perque had a long-standing open account arrangement with Lady Bird 1 ¡Homes, each home’s particular account was handled individually. She testified that Lady Bird Homes had a good payment history with Perque and that they had done business together for at least 10 years with an average of 10-12 homes per year. She testified, as did Stewart, that Lady Bird Homes did not pay Perque for the Boudreauxs’ flooring. She stated, however, that she did not discuss the unpaid flooring with Mrs. Boudreaux until after the closing.

Laure also described the unplanned “meeting” that took place in Mrs. Bou-dreaux’s front yard several weeks after the closing. This meeting was the only time all three parties talked together about the unpaid Boudreaux flooring bill. Laure agreed with Mrs. Boudreaux that Mr. Christiana said that Mrs. Boudreaux would pay the entire bill for the Boudreaux flooring job, and that although Mrs. Boudreaux did not say much, she did not deny Mr. Christiana’s statement either.

In light of the refund that the Bou-dreauxs received from Lady Bird Homes after the closing, and after carefully considering all of the testimony adduced at trial and the documentation introduced into evidence, particularly the building contract accountings provided by Lady Bird Homes, we find that Lady Bird Homes did not pay Perque anything for the flooring, and that the final price Lady Bird Homes charged the Boudreauxs for their new home did not include any amounts for flooring installed by Perque in the Boudreaux home.

Although Mrs. Boudreaux testified that it was her understanding that Lady Bird Homes had paid Perque for the Boudreaux flooring job, we find that Mrs. Boudreaux ultimately acknowledged and accepted responsibility for payment of the entirety of the Perque bill by first applying for financing with American General for the entirety of the Perque bill, and then by later entering into the written payment agreement with Perque for the entirety of the Perque bill after her loan application with American General was denied. Mrs. Bou-dreaux’s testimony 110at trial was clear that she understood that by signing the agreement, she had agreed to pay the entirety of the Perque bill over a two-year period. Mrs. Boudreaux never claimed to be mistaken or in error regarding the terms or the nature of the agreement. Accordingly, we find that Mrs. Boudreaux has not provided sufficient evidence to vitiate her consent to the agreement because of error or fraud.

We now consider whether Mrs. Boudreaux’s consent to the agreement should be vitiated because of duress. Mrs. Boudreaux claimed at trial that one of the reasons she signed the agreement with Perque was that Stewart Perque promised to refrain from placing a lien on her home-site in consideration of her making a payment agreement with Perque. Stewart Perque denied this at trial. This scenario does not rise, however, to the level of duress sufficient to vitiate Mrs. Bou-dreaux’s consent to the agreement. Consent is vitiated when it has been obtained by duress of such a nature as to cause a reasonable fear of unjust and considerable injury to a party’s person, property, or reputation. LSA-C.C. art. 1959. A threat of doing a lawful act or a threat of exercising a right does not, however, constitute duress. LSA-C.C. art. 1962. Perque had the legal right under LSA-R.S. 9:4801, et seq., to file a lien against the Boudreaux homesite in order to secure the debt it claimed it was owed for the flooring it installed in the Boudreaux home. Accordingly, Perque’s alleged assertion that it would file a lien against the Boudreaux homesite if Mrs. Boudreaux would refuse to enter into a payment agreement with Perque is not considered legal duress.

Mrs. Boudreaux also claimed that she entered into the agreement with Perque in order to buy time to resolve the flooring payment issue with Mr. Christiana. While that may have been one reason Mrs. Bou-dreaux applied for financing with American General and later signed the agreement with Perque, such does not vitiate her consent to the agreement.

|nMrs. Boudreaux further claimed that she was pressured into entering into the agreement with Perque before she knew to whom the debt belonged and before she knew her legal rights with respect thereto. The record shows, however, that Mrs. Boudreaux knew at least as early as March of 2007 that Perque was looking to her for payment. The record is devoid of any evidence that Mrs. Boudreaux was prevented in any way from seeking legal advice before ultimately signing the agreement in July of 2007. Likewise, the record shows that Mr. and Mrs. Boudreaux were fairly sophisticated in that they owned a business, and were building an upscale home valued over $475,000 that required their detailed participation, as evidenced by the construction contract and the different allowances listed therein.

As noted above, at the closing, Mr. Christiana on behalf of Lady Bird Homes signed an affidavit attesting that to his knowledge and belief, there were no unpaid bills for labor or materials furnished in the construction of the Boudreaux home. Mr. Christiana explained that he signed the affidavit because he was under the understanding at that time that Mrs. Bou-dreaux had paid Perque, and that to his knowledge everybody had been paid. Neither Perque nor any other material or labor suppliers are specifically mentioned in the affidavit. This affidavit does not invalidate the later signed written payment agreement between Mrs. Boudreaux and Perque. The affidavit was made by Mr. Christiana, who was attesting only to his own knowledge or belief at the time of the closing. He was not a party to any of the later communications and/or negotiations between Perque and Mrs. Boudreaux that ultimately led to the “in house” financing agreement between Perque and Mrs. Boudreaux. Accordingly, the affidavit has no bearing or effect on the later signed written payment agreement between Perque and Mr. Boudreaux.

|12We conclude, therefore, that Mrs. Boudreaux failed to prove any of the vices of consent of error, fraud or duress that would invalidate her written payment agreement with Perque dated July 12, 2007.

Second Assignment of Error

In its second assignment of error, Perque argues that, because the testimony at trial clearly supported Perque’s position that the written payment agreement is clear and unambiguous, the trial court erred in failing to hold Mrs. Boudreaux liable for the full amount due Perque for her flooring. We agree.

As we have found above, the agreement from Mrs. Boudreaux to Perque is clear and unambiguous. Furthermore, Mrs. Boudreaux took affirmative action not once (by applying for the American General loan), but twice (by also signing the agreement with Perque after her American General loan application was denied), to finance the entire amount due to Perque for the flooring installed in her home. Mrs. Boudreaux’s testimony was unequivocal that she understood the factual basis for and the terms of the agreement. Mrs. Boudreaux even went so far as to subsequently make a payment of $1,200.00 to Perque on the agreement. As found above, her claimed reasons for entering into the agreement do not vitiate her consent thereto. Accordingly, the trial court erred in casting Mrs. Boudreaux in judgment for an amount less than the full amount she agreed to pay in her July 12, 2007 agreement with Perque, less a credit for the $1,200.00 payment subsequently made by Mrs. Boudreaux to Perque pursuant thereto. We therefore reverse that part of the judgment that held Lady Bird Homes liable to Perque for the amount of $16,787.00, and amend the judgment to find Mrs. Boudreaux liable to Perque for the net amount of $24,481.00 due to Per-que for the Boudreaux flooring job.

\ ^CONCLUSION

For the foregoing reasons, we reverse that part of the trial court’s judgment that found Lady Bird Homes liable to Perque. We affirm that part of the judgment that finds Mrs. Boudreaux liable to Perque and amend it to hold Mrs. Boudreaux liable to Perque for the net amount of $24,481.00 due Perque for the Boudreaux flooring job. We affirm the trial court’s judgment awarding Perque legal interest from date of judicial demand until paid. Costs of this appeal are assessed to Mrs. Bou-dreaux.

REVERSED IN PART; AFFIRMED AS AMENDED

WICKER, J., concurs in part and dissents in part with reasons.

EDWARDS, J., dissents with reasons.

WICKER, J.,

concurs in part and dissents in part for the reasons assigned.

|tI agree with the majority that the trial court erred in finding Mrs. Boudreaux liable for less than the full amount of the July 12, 2007 agreement. However, I disagree with the majority in that it reversed the part of the trial court’s judgment that found Lady Bird Homes liable to Perque Carpet.

As the majority notes, the July 12, 2007 agreement is clear and unambiguous and as such Mrs. Boudreaux should be cast in judgment for $24,481.00. However, in my view, the July 12, 2007 agreement represents an assumption, on Mrs. Boudreaux’s behalf, of the obligation that Lady Bird Homes owed to Perque Carpet.

La. C.C. art. 1821 provides:

An obligor and a third person may agree to an assumption by the latter of an obligation of the former. To be enforceable by the obligee against the third person, the agreement must be made in writing. The obligee’s consent to the agreement does not effect a release of the obligor. The unreleased obligor remains solidarilg bound with the third person, (emphasis added).

The underlying obligation in this case arose from the open account which existed between Perque Carpet and Lady Bird Homes. The record is clear, however, that Mrs. Boudreaux assumed Lady Bird Home’s obligation to Perque Carpet. Laure Perque testified that during the face-to-face meeting she had with Mr. Christiana and Mrs. Boudreaux, Mr. Christiana stated that |2Mrs. Boudreaux would pay the entire bill. Mrs. Boudreaux admitted that upon hearing Mr. Christia-na’s assertion, she responded “okay.” Because this oral agreement was subsequently reduced to writing, Perque Carpet is legally entitled to enforce the agreement against Mrs. Boudreaux wherein she assumed Lady Bird Home’s obligation. This does not mean, however, that Lady Bird Homes is discharged therefrom. In order for Lady Bird Homes to escape liability, Perque Carpet would have had to discharge it from the obligation. See La. C.C. art. 1882. There is no evidence that occurred here. In fact, Perque Carpet amended its original petition to add Lady Bird Homes as a defendant which evidences the fact that it was never discharged from its obligation.

Therefore, in my view, I would find Lady Bird Homes and Mrs. Boudreaux solidarily liable to Perque Carpet for $25,681.00 subject to the $1,200 payment Mrs. Boudreaux has already tendered.

EDWARDS, J.,

dissents.

|,1 dissent in part from the majority opinion in this case. I disagree that the letter faxed from Perque Carpet & Drapery, LTD, which indicates monthly payments of $1,138.20 in the body of the letter and $1,200.00 in a handwritten notation below the text, is clear and unambiguous as a matter of law. Accordingly, I further disagree that the trial court erred in admitting parol evidence to clarify the agreement. Finally, I find the trial court made findings of fact based on properly admitted parol evidence which I cannot find are abuses of the trial court’s vast discretion.

I would affirm the judgment as rendered and amended by the trial court.

      . The trial court judgment also awarded Per-que legal interest on the amounts awarded from date of judicial demand until paid.

      . The value of the flooring installed by Perque in the Boudreaux home ($25,681.00) is not in dispute. Nor is the fact that Perque has not been paid therefor, except for a payment of $1,200.00 made by Mrs. Boudreaux to Per-que.

      . Though Mr. Christiana did not appear at trial, his deposition was introduced into evidence.

      . LSA-C.C. art. 1848 provides as follows: Testimonial or other evidence may not be admitted to negate or vary the contents of an authentic act or an act under private signature. Nevertheless, in the interest of justice, that evidence may be admitted to prove such circumstances as a vice of consent, or a simulation, or to prove that the written act was modified by a subsequent and valid oral agreement.

      . The trial court's reasons for judgment, while defining the principles upon which the court is deciding a case, form no part of the official judgment signed and from which appeals are taken. Western World Ins. Co., Inc. v. Paradise Pools & Spas, Inc., 633 So.2d 790, 792 (La.App. 5 Cir.1994), citing LSA-C.C.P. arts. 1917 and 1918.

      . The first invoice Mrs. Boudreaux received from Perque that listed her as the customer instead of Lady Bird Homes was in June of 2007, although Perque had been calling her about the debt for some time before then.

      . Stewart Perque denied that he ever promised to refrain from filing a lien on the Bou-dreaux homesite in consideration for the payment agreement.

      . Even though Lady Bird Homes failed to appeal the adverse judgment, Perque appealed the amended judgment, seeking a judgment that casts Mrs. Boudreaux for the full amount in dispute. Accordingly, the entire judgment is properly before this court.


author: MARION F. EDWARDS, Chief Judge.

text:
    Laurie Ventura, wife of/and Hector VENTURA v. Debra McCune, wife of/and Kenneth VOGEL.
    No. 10-CA-118.
    Court of Appeal of Louisiana, Fifth Circuit.
    June 14, 2011.
    Gregg L. Spyridon, Paul D. Palermo, Craig V. Sweeney, Spyridon, Palermo & Doman, L.L.C., Metairie, LA, for Plaintiffs/Appellees.
    William P. Connick, Connick and Con-nick, L.L.C., Metairie, Louisiana, Patrick G. Kehoe, Jr., Attorney at Law, Jack A. Ricci, Ricci & Giepert, New Orleans, LA, for Defendants/Appellants.

      Panel composed of Judges MARION F. EDWARDS, CLARENCE E. McMANUS, and FREDERICKA HOMBERG WICKER.
   MARION F. EDWARDS, Chief Judge.

This is an appeal from a declaratory judgment and permanent injunction which decreed that a servitude that exists between the parties’ properties is one of exclusive passage and utility and does not include the general right to park vehicles. Upon review, we find that this appeal must be dismissed for lack of jurisdiction, and the matter remanded to the trial court for further proceedings.

Plaintiffs/appellees, Laurie and Hector Ventura (“the Venturas”), and defendants/appellants, Debra and Kenneth Vo-gel (“the Vogels”), live across the street from each other on a private extension of Rue Chardonnay in Metairie. The properties face each other across a 50’ x 100’ extension at the end of Rue Chardonnay that forms a roadway/cul de sac. The land for this extension was originally cut from each property when the land was divided into two lots by the prior owner (Custom Homes by Celia, Inc.) by an Act dated October 31, 1989 and duly recorded in the Conveyance of Jefferson Parish. The 50’ x 100’ was created as “an exclusive servitude of passage as a private lane and utilities in perpetuity for the exclusive use of Lots 1-A and 1-B only.” A home was built on each lot. The Vogels acquired Lot-A in 1990 and the Venturas acquired Lob-B in 1999. Both families use the homes as their primary residences.

RBoth parties apparently used the cul de sac for parking and access to their respective driveways. There was friction between these neighbors over the use of the servitude that rose to the level of litigation in 2009. The parties began exchanging letters complaining about misuse of the servitude. In May of 2009, the Venturas notified the Vogels of their intent to construct a circular driveway fronting on the servitude. The Vogels objected to the construction of the driveway and claimed 44’ of the 50’ width of the servitude as private property.

The Vogels filed a petition against the Venturas in July of 2009 for damages due to the alleged improper use of the servitude. In September of 2009, the Ventu-ras filed this action for declaratory judgment and permanent injunction seeking a declaratory judgment determining the rights and obligation of the parties under the servitude, including the right to construct a circular driveway and to park vehicles in front of their home. The petition also seeks a ruling from the trial court enjoining the Vogels from disturbing and/or interfering with the Venturas’ right of use and enjoyment of the servitude.

A preliminary injunction was granted on October 6, 2009 enjoining both the Vogels and the Venturas from parking in the servitude. The order made an exception for business invitees providing commercial sendees who can park for a reasonable time. Other issues, including the right to construct the circular drive, were not addressed in the judgment. No appeal was taken from that judgment.

The hearing for the declaratory judgment and permanent injunction came before the trial court on November B, 2009. At that time, the trial court declared its intention to consider and rule on all issues in the petition. However, at the request |4of the Vogels, the matter was again restricted only to the right to parking on the servitude.

On November 5, 2009, the trial court rendered a judgment declaring that the “the Servitude of Exclusive Passage and utility does not include a right to park on the servitude.” In accordance with that ruling, the trial court entered a judgment of permanent injunction against parking in the servitude, with the exception “for business invitees and/or licensees providing commercial services including deliveries, maintenance, and construction, allowing such invitees and/or licensees to park on the servitude, but only for as long as it is reasonably necessary to conduct their business and in no case overnight.” The Vogels have appealed that judgment.

LAW AND ANALYSIS

Appellate courts have the duty to examine their subject matter jurisdiction sua sponte, even when the parties do not raise the issue. While a final judgment is appealable, an interlocutory judgment is appealable only when expressly provided by law. A judgment that “determines the merits in whole or in part,” and an interlocutory judgment is one that “does not determine the merits but only preliminary matters in the course of the action.”

The judgment before us is a judgment that does not determine the merits in whole. The only issue ruled upon is the issue of parking. There is no ruling on the obligation of the parities under the servitude, or the right to construct a circular driveway. La. C.C.P. art. 1915 provides in pertinent part:

1 sA. A final judgment may be rendered and signed by the court, even though it may not grant the successful party or parties all of the relief prayed for, or may not adjudicate all of the issues in the case, when the court:
(1) Dismisses the suit as to less than all of the parties, defendants, third party plaintiffs, third party defendants, or in-tervenors.
(2) Grants a motion for judgment on the pleadings, as provided by Articles 965, 968, and 969.
(3) Grants a motion for summary judgment, as provided by Articles 966 through 969, but not including a summary judgment granted pursuant to Article 966(E).
(4) Signs a judgment on either the principal or incidental demand, when the two have been tried separately, as provided by Article 1088.
(5) Signs a judgment on the issue of liability when that issue has been tried separately by the court, or when, in a jury trial, the issue of liability has been tried before a jury and the issue of damages is to be tried before a different jury.
(6) Imposes sanctions or disciplinary action pursuant to Article 191, 863, or 864 or Code of Evidence Article 510(G).
B. (1) When a court renders a partial judgment or partial summary judgment or sustains an exception in part, as to one or more but less than all of the claims, demands, issues, or theories, whether in an original demand, recon-ventional demand, cross-claim, third party claim, or intervention, the judgment shall not constitute a final judgment unless it is designated as a final judgment by the court after an express determination that there is no just reason for delay.
(2) In the absence of such a determination and designation, any order or decision which adjudicates fewer than all claims or the rights and liabilities of fewer than all the parties, shall not terminate the action as to any of the claims or parties and shall not constitute a final judgment for the purpose of an immediate appeal. Any such order or decision issued may be revised at any time prior to rendition of the judgment adjudicating all the claims and the rights and liabilities of all the parties.

We find the judgment before this Court is a non-appealable judgment. Accordingly, we are without jurisdiction to consider the merits of the appeal. For the foregoing reasons this appeal is dismissed, and the matter is remanded to the trial court for further proceedings.

APPEAL DISMISSED; MATTER REMANDED

      . We note that this is not the first time the Vogels have been involved in a legal battle over this servitude. In 1995, the Vogels sued the prior owners of the Venturas’ home and sought an injunction keeping them from installing underground drainage, planting trees and shrubs, and putting up a mailbox. See, Vogel v. Chappuis, 95-863 (La.App. 5 Cir. 2/14/96), 670 So.2d 1312.

      . That action is separate and there is no indication in the record before us that the two matters have been consolidated.

      .The Vogels also filed an untimely motion for new trial that they subsequently dismissed before a ruling was made. The motion for appeal, however, was timely filed. The Vo-gels moved for and were granted a suspensive appeal to which the Venturas objected. There is no indication that the trial court has acted on that motion in opposition to the suspensive appeal. We note that the Vogels have posted the required appeal bond.

      . Monterrey Center, LLC v. Education Partners, Inc., 08-0734 (La.App. 1 Cir. 12/23/08), 5 So.3d 225, 228-29.

      . La. C.C.P. art. 2083.

      . La. C.C.P. art. 1841.


author: JUDE G. GRAVOIS, Judge.

text:
    FIRST MILLENNIUM CONSTRUCTION, LLC v. PARISH OF JEFFERSON, Jefferson Parish Council, Sizeler Thompson Brown Architects (A Professional Corporation), Sizeler Thompson Brown Architects Regional Design Group, LLC, and Eddie Castelin.
    No. 10-CA-1029.
    Court of Appeal of Louisiana, Fifth Circuit.
    June 14, 2011.

      Jeffrey W. Bennett, Attorney at Law, Harahan, LA, for Plaintiff/Appellee.
    William E. Wright, Jr., Terrence L. Brennan, Keith J. Bergeron, Kelly E. Theard, Attorneys at Law, New Orleans, LA, for Defendant/Appellant.
    Panel composed of Judges CLARENCE E. McMANUS, JUDE G. GRAVOIS, and MARC E. JOHNSON.
   JUDE G. GRAVOIS, Judge.

l2Pefendants, Sizeler Thompson Brown Architects, A Professional Corporation, and Sizeler Thompson Brown Architects Regional Design Group, LLC (both Sizeler defendants are sometimes referred to herein collectively as “Sizeler” or “the Siz-eler defendants”), have appealed a default judgment in the amount of $423,850.70, plus court costs, that was rendered jointly against them in favor of plaintiff, First Millennium Construction, LLC (“First Millennium”). For the reasons that follow, we vacate the judgment and remand this matter for further proceedings.

FACTS AND PROCEDURAL HISTORY

On February 10, 2010, First Millennium filed a Petition for Breach of Contract, Unfair Trade Practices, Damages, and Attorney’s Fees naming as defendants the Sizeler defendants, the Parish of Jefferson, the Jefferson Parish Council (the Parish of Jefferson and the Jefferson Parish Council are sometimes referred to herein collectively as “the Parish”), and Eddie Castelin (“Castelin”), ^allegedly an employee of Siz-eler. The petition states that First Millennium was the general contractor of a building to be built for the Parish in Marrero to be used as a “Head Start” school (“the project”). The petition alleges that either one or both of the Sizeler defendants served as the architect on the project and as the Parish’s authorized representative on the project. Eddie Castelin was the site representative of Sizeler on the project. First Millennium’s contract with the Parish provides for the project to be “substantially complete” within 365 days after the day indicated in the “Notice to Proceed” issued in connection with the project (i.e., within 365 days after March 5, 2008, or by March 6, 2009), and that failure to complete the project on time would result in liquidated damages in the amount of $600.00 per day having to be paid by First Millennium to the Parish. The petition alleged that the conduct of Sizeler and Castelin resulted in delays in the construction of the project which caused First Millennium to incur damages. Specifically, First Millennium alleged that Sizeler’s plans and specifications for the project contained several “errors, discrepancies, and/or ‘holes’ ” which prompted First Millennium to send a number of Requests for Information (“RFIs”) to Sizeler seeking additional information. The petition alleged that Sizeler ignored and/or refused to adequately respond to most of these requests.

The petition further made the following allegations of fault against the Sizeler defendants, to-wit:

■ The site elevations called for in Siz-eler’s plans and specifications were inaccurate which caused problems with ingress and egress to the rear patios and resulted in drainage catch basins being placed in a hole over two feet deep, resulting in First Millennium having to perform extra work.
■ The “Tryke path” dimensions and layout and playground dimensions were omitted from the plans and specifications causing numerous delays in the construction.
\4U The steel beams called for in the plans and specifications interfered with some of the roof trusses.
■ The steel tubing canopy called for in the plans and specifications “ran into the front porch roof’ and Sizeler’s proposed solution did not solve the problem.
■ Sizeler unnecessarily required that First Millennium “wrap the exterior sheathing of the entire building with plastic to ‘protect’ the sheathing from the elements,” increasing the cost of construction.
■ The plans and specifications contained an incorrect water meter size and it took Sizeler “close to thirteen (13) months to get a Change Order signed for [First Millennium] to move forward, which caused many delays.”
■ Sizeler unnecessarily forced First Millennium to get an engineer to inspect the concrete to report that it was cured in accordance with the plans and specifications.
■ The plans and specifications did not provide for a sufficient amount of support for the air-conditioning units that were placed on the roof of the building.
■ Sizeler designed the electrical room too small for the equipment called for in the plans and specifications resulting in a lengthy delay in the project.

In its petition, First Millennium requested a declaratory judgment “that the delays experienced by the Project were not caused by [First Millennium],” and an award for damages it suffered as a result of Sizeler’s and Castelin’s actions, as well as attorney’s fees and any other “legal and/or equitable” relief.

Castelin was served with the petition at his residence. The Sheriffs Office was unable to serve the Sizeler defendants through their respective registered agents for service of process. However, on March 29, 2010, the Sizeler defendants were purportedly served with the petition pursuant to LSA-C.C.P. arts. 1266(B) and 1261, respectively, through an alleged employee of suitable age and discretion at the place where the business of the Sizeler defendants was regularly conducted.

On April 14, 2010, First Millennium obtained a preliminary default against Sizeler. On April 22, 2010, following a confirmation hearing, judgment was rendered in favor of First Millennium and against Siz-eler confirming the | ¡{preliminary default, ordering Sizeler to “immediately reimburse, indemnify, and hold [First Millennium] and its surety harmless for any ‘liquidated damages’ that [First Millennium] and/or its surety pays to [the Parish] in connection with [the project],” and awarding “actual” damages to First Millennium in the amount of $423,850.37, plus court costs. This appeal followed the denial of Sizeler’s Motion for New Trial.

On appeal, Sizeler contends that the trial court erred in confirming the default judgment because the Sizeler defendants were not properly served with the petition, and because the evidence submitted at the default confirmation hearing was insufficient to establish a prima facie case as to fault and damages.

ANALYSIS

Louisiana Code of Civil Procedure article 1701 provides for the entry of a judgment by default when the defendant in the demand fails to answer within the time prescribed by law. Article 1702 sets forth the procedure for confirmation of a default judgment, stating that a “judgment of default must be confirmed by proof of the demand sufficient to establish a prima facie case.” A prima facie case is established, as required for confirmation of a default judgment, when the plaintiff proves the allegations made in the petition, with competent evidence, to the same degree as if the allegations had been specifically denied by the defendant. Power Marketing Direct, Inc. v. Foster, 05-2023 (La.9/6/06), 938 So.2d 662.

The determination of whether there is sufficient proof to support a default judgment is a question of fact and should not be disturbed on appeal unless it is manifestly erroneous. Ledet v. Moe, 03-745 (La.App. 5 Cir. 12/9/03), 864 So.2d 643, 644. In reviewing a default judgment, an appellate court is restricted to determining whether the record contains sufficient evi dence to prove a prima facie |6case. Rhodes v. All Star Ford, Inc., 599 So.2d 812, 813 (La.App. 1 Cir.1992). Although there is a presumption that the judgment confirming a default is supported by competent evidence, it does not apply when, as in this case, there is a transcript of the confirmation proceeding. Hickman v. Wm. Wrigley, Jr. Co., Inc., 33,896 (La.App. 2 Cir. 10/4/00), 768 So.2d 812, 815.

At the confirmation hearing, Richard Walsh, the only person to testify, stated that he is a senior project manager for First Millennium. When asked who were the architects on the project, Mr. Walsh responded “Sizeler, Thomas and Brown” without differentiating between the two Sizeler defendants. Mr. Walsh also stated that “Sizeler” was the Parish’s representative on the project. Mr. Walsh personally dealt with the architect on the project and with employees, as he understood it, of either one of the Sizeler defendants. First Millennium’s contract with the Parish provided that the project was scheduled to be completed within 365 days and that there was a $600.00 per day liquidated damages clause in the contract for every day that the project was not finished past the projected completion date. First Millennium “shut the job down” when the project was approximately eight months behind schedule. The delays were caused by a “[l]ack of response from the architect and additional works that they forced us to do that were not part of the contract and mainly they didn’t respond to problems that came up, bad set of plans and slow response to correcting inadequate plans.” First Millennium submitted change orders to Sizeler and Sizeler either did not respond or responded very late. Mr. Walsh further testified:

This job had an excessive amount of RFIs written and submitted and RFI according to the contract is supposed to be submitted and turned back around to you with an answer within three weeks. Some of them lingered on for over a year.

Mr. Walsh estimated there were 112 RFIs in this case.

|7Mr. Walsh testified as to the following examples of conduct by Sizeler that resulted in delays in the project and/or expenses or damages incurred by First Millennium, to-wit:

■ Although the “Dims Glass board” on the outside of the building could be exposed to the weather, Sizeler made First Millennium wrap the building “in a wrap similar to a Ty-vek wrap” for protection from the weather, which caused a delay of approximately 90 days.
■ There was a beam that “wouldn’t work” which First Millennium contended was designed wrong. First Millennium submitted an RFI concerning the beam, and after “it went back and forth,” it was determined that Sizeler’s design was wrong and the beam had to be changed.
■ Once First Millennium fired Caste-lin’s friend as superintendent on the job, Castelin was “intentionally difficult” and made First Millennium do things just to cost First Millennium more money.
■ The air-conditioning units were placed on the roof, causing the roof beams and joists to sag in the middle. First Millennium sent an RFI to Sizeler citing this problem and Sizeler failed to respond. First Millennium finally went to a Parish official who instructed First Millennium to remove the air-conditioning units from the roof until the problem was resolved. First Millennium did not receive any reimbursement for removing the air-conditioning units from the roof or for changing the bar joists and adding structural steel.
■ The specifications in the electrical room called for a transformer that was no longer deemed safe and was out of production. The new transformer would not fit in the electrical room, which caused a four-month delay. First Millennium was not compensated for the time spent on reconfiguring the room.
■ The “elevation [was] always a problem on the job,” requiring things to be formed two and three times, noting that the dimensions on the job were wrong and that the corners of the slab “were sticking up two and three feet.” These problems delayed the job “in excess of four months on that part of the site work.”
■ The one-inch water meter was incorrect. It took over thirteen months from the RFI and the first request for Sizeler to change the water meter size from a one-inch to a three-inch meter, and that all the piping that was associated with this had to be increased to three-inch piping. In response to a question as to how long this delayed the project, Mr. Walsh testified: “During that time probably a critical path would show six months.”
■ Because of the delays caused by Siz-eler, First Millennium incurred damages due to overhead and cost overruns, stating for example the concrete pumps had to come out “two and three times because the pours were stopped and started.”
_yi First Millennium had to pay for portable trailers, toilets and telephones and the salaries of people who were hired for the job, such as the project manager, project superintendent, and project assistant, during the time the job was shut down due to the problems with the electrical room.

Mr. Walsh further testified that he went through the expenses on the job and estimated how many weeks each item delayed the progress of the job. He calculated that the damages incurred by First Millennium attributable to Sizeler’s conduct were $423,850.97. The trial court admitted into evidence a thirty-seven page document entitled “Lapalco Head Start Break Down,” with the coversheet thereof being referred to in Mr. Walsh’s testimony as a “summary sheet,” which contains the cost of various items for the forty-three weeks that the project was allegedly delayed by Sizeler. These items included salaries, insurance, utilities, labor and materials. The trial court then questioned Mr. Walsh regarding the summary sheet. Mr. Walsh testified that First Millennium bid this job based on a projected completion of fifty-two weeks and the costs on the summary sheet represent the time they were delayed and the impact the delays had on the schedule of the job. Mr. Walsh reiterated that he is the senior project manager for First Millennium and does most of the estimating on jobs, and that he was personally involved with this particular project. Mr. Walsh testified that he assisted in compiling the documents attached to the summary sheet and was acquainted with the totals on the summary sheet. Importantly, Mr. Walsh offered no testimony, however, specifically regarding any of the particular documents that were attached to the summary sheet.

A review of the documents attached to the summary sheet indicates that these documents do not entirely support the items listed on the summary sheet. For example:

■ Although there are three pages attached to the summary sheet listing check numbers and amount of checks written from May of 2009 to | ^February of 2010 purportedly for salaries of the project manager, project superintendent, and project assistant, there are no copies of the actual checks written or any other documents to support the assertion that these amounts were actually paid and whether they were actually paid in connection with the project.
■ The summary sheet lists payments of over $70,000.00 for various types of insurance, but the only two invoices apparently referencing insurance premiums contained in the documents attached to the summary sheet total only $7,088.00, and there are no supporting documents concerning or explaining these invoices.
■ The summary sheet lists payments for a job trailer in the amount of $4,152.20, but the only document attached to the summary sheet referencing a modular building shows a one-time charge for a modular building in the amount of $415.22.
■ The summary sheet lists payments for portable toilets in the amount of $2,646.60, but the only document attached to the summary sheet referencing portable toilets shows a onetime charge for portable toilets in the amount of $264.66.
■ The summary sheet lists payments for dumpsters in the amount of $13,000.00, but the only documents attached to the summary sheet referencing dumpsters are three receipts for dumpsters totaling $975.00.
■ Attached to the summary sheet are receipts for concrete, but it not possible to determine if these are receipts for concrete during the normal course of the project or whether these charges were due to the alleged fault of Sizeler.
■ Attached to the summary sheet are some receipts related to rental equipment that appear to reference a job entitled “Mallard Lake Estates.”
■ The summary sheet contains labor charges in the amounts of $2,000.00, $4,000.00, $4,500.00, and $24,545.00, but there are no supporting documents attached to the summary sheet concerning or explaining these labor charges.
■ There is a charge on the summary sheet for building wrap in the amount of $6,000.00, but there are no supporting documents attached to the summary sheet concerning or explaining this item.
■ Although Mr. Walsh testified that First Millennium did not receive any reimbursement for removing the air-conditioning units from the roof or for changing the bar joists and adding structural steel, the summary sheet and attached documentation do not reference any charges for these items.

Thus, after a thorough review of the entire record and the exhibits introduced, we are unable to find sufficient evidentiary support for the “actual” damages allegedly incurred by First Millennium and awarded by the trial court.

| inMoreover, although in his testimony Mr. Walsh repeatedly referred to the lack of response by Sizeler to First Millennium’s numerous RFIs, no RFIs or responses thereto were submitted by First Millennium at the confirmation hearing. Consequently, without the RFIs referred to in Mr. Walsh’s testimony, we are unable to link the alleged lack of response by Sizeler to the delays in the progress of the job.

Our review of the default judgment rendered in this case is limited to determining whether the record contains sufficient evidence to prove a prima facie case. Rhodes v. All Star Ford, Inc., supra. After thoroughly reviewing the record, for the reasons stated above, we find that First Millennium did not present sufficient proof at the confirmation hearing to establish a pri-ma facie case as to the fault of Sizeler as alleged in the petition and especially as to the nature and extent of the damages alleged in the petition and awarded to First Millennium in the default judgment. Accordingly, we find that the default judgment in this case was improperly rendered. As such, a discussion of Sizeler’s remaining arguments in this appeal is pre-termitted.

CONCLUSION

For the foregoing reasons, the April 22, 2010 default judgment rendered in favor of First Millennium is hereby vacated and this matter is remanded to the trial court for further proceedings. Costs of the appeal are assessed to First Millennium.

JUDGMENT VACATED; MATTER REMANDED

      . The petition also asserted damages for defamation and unfair trade practices, which were denied by the trial court at the default confirmation hearing and are not involved in this appeal.


author: CLARENCE E. McMANUS, Judge.

text:
    Terrence M. ROSS and Rhonda B. Ross v. C. ADAMS CONSTRUCTION & DESIGN, L.L.C., State Farm Mutual Insurance Company and Louisiana Citizens Property Insurance Company.
    No. 10-CA-852.
    Court of Appeal of Louisiana, Fifth Circuit.
    June 14, 2011.

      Kevin C. O’Bryon, O’Bryon & Schnabel, Attorney at Law, New Orleans, LA, for Plaintiff/Appellants.
    Darren A. Patín, Hailey, McNamara, Hall, Larmann & Papale, Attorney at Law, Metairie, LA, and Ralph S. Hubbard, III, Seth A. Schmeeckle, Lugenbuhl, Wheaton, Peck, Rankin & Hubbard, Attorneys at Law, New Orleans, LA, for Defendant/Ap-pellee.
    Wayne J. Lee, Heather M. Lonian, Stone Pigman Walther Wittmann, Attorneys at Law, and Adrianne L. Baumgart-ner, Charles L. Chassaignac, IV, Porteous, Hainkel and Johnson, Attorneys at Law, New Orleans, LA, for National Association of Mutual Insurance Company.
    Panel composed of Judges MARION F. EDWARDS, SUSAN M. CHEHARDY, and CLARENCE E. McMANUS.
   CLARENCE E. McMANUS, Judge.

|sThis is an appeal by plaintiffs from the trial court’s granting of summary judgment in favor of defendant, Louisiana Citizens Property Insurance Company. For the reasons which follow, we affirm the trial court’s judgment.

STATEMENT OF THE CASE

In 2006, C. Adams Construction & Design, LLC renovated a house at 316 Wood-vine Ave. in Metairie, LA. In January 2007, plaintiffs, Terrence and Rhonda Ross (“the Rosses”), purchased the house from C. Adams Construction & Design and obtained homeowners insurance from Louisiana Citizens Property Insurance Company (“Louisiana Citizens”).

Approximately two years after they purchased the home, the Rosses began having chronic malfunctions in the heating, ventilation, and air conditioning system (“HVAC”). The Rosses then discovered the presence of foreign gypsum drywall, now referred to as “Chinese drywall”, in the house. In March 2009, the Rosses submitted an insurance claim to Louisiana Citizens for the damages caused by the Chinese drywall. Louisiana Citizens conducted an investigation and confirmed the presence of the Chinese drywall and damage to the metal surfaces caused by corrosion. Thereafter, on April 29, 2009, Louisiana Citizens denied the Rosses’ insurance claim and determined the claim was not covered under their homeowners insurance policy,

|4On May 28, 2009, the Louisiana Department of Health and Hospitals conducted an investigation and inspection of the home and confirmed the presence of dangerous Chinese drywall in the home. On June 23, 2009, the Rosses sent a formal demand to C. Adams Construction giving them an opportunity to repair or correct the defects; however, they failed to do so. The Rosses ultimately made the necessary repairs at their own expense.

On July 30, 2009, the Rosses filed suit against the builder of the home, C. Adams Construction, the builder’s insurer, State Farm Insurance Company, and their own homeowners insurer, Louisiana Citizens. The Rosses claimed the defective Chinese drywall released sulfuric gases that cause corrosion of various metal components, including the HVAC coils, refrigerator units, electrical wiring, plumbing, jewelry, appliances, electronics, and other household items. The Rosses also claimed the defective Chinese drywall had a noxious “rotten egg-like odor.” The Rosses alleged the defective Chinese drywall caused damage to their home, as well as their personal property.

On January 25, 2010, the Rosses filed a motion for partial summary judgment claiming the Louisiana Citizens homeowners insurance policy provided coverage for their claimed losses. On March 19, 2009, Louisiana Citizens filed a cross motion for summary judgment asserting that coverage for the claimed losses was barred by four different exclusions in the homeowners policy: 1) loss caused by faulty materials, 2) loss caused by latent defect, 3) loss caused by corrosion, and 4) loss caused by pollution. Louisiana Citizens also argued there is no coverage for the cost of removing and replacing the drywall itself because it did not sustain a “direct physical loss.” Further, Louisiana Citizens asserted the claim for damage to personal property is not covered because personal property is covered only for 1.dosses caused by sixteen specific perils listed in the policy and none apply in this situation.

A hearing on the motions for summary judgment was held on April 5, 2010. The trial court issued a judgment April 14, 2010 denying the Rosses’ motion for partial summary judgment and granting Louisiana Citizens’ cross motion for summary judgment. The trial court also issued an order on May 20, 2010, clarifying the ruling was a final judgment, dismissing the Rosses’ claims against Louisiana Citizens. The Rosses now appeal this judgment. For the reasons which follow, we affirm the trial court’s judgment.

DISCUSSION

This is an appeal from the granting of a motion for summary judgment. A motion for summary judgment should be granted when there exists no genuine issue of material fact, and the mover is entitled to judgment as a matter of law. LSA-C.C.P. Art. 966; Brewster v. Hunter, 09-932, p. 3 (La.App. 5 Cir. 3/9/10), 38 So.3d 912, 914, writ denied, 2010-0773 (La.6/4/10), 38 So.3d 305. Appellate courts review summary judgments de novo using the same criteria applied by the district court in order to determine whether the grant of summary judgment was appropriate. Id. Whether an insurance policy provides or precludes coverage, as a matter of law, can be resolved within the framework of a motion for summary judgment. Id.

The material facts of this case are undisputed. The Rosses home contained Chinese drywall which emitted sulfuric gases that caused corrosion of the electrical wiring, plumbing components, and other household items. Our review of the granting of the summary judgment on appeal requires an interpretation of the homeowners insurance policy and a determination of the applicability and enforceability of the policy provisions pursuant to Louisiana law.

| ^Louisiana Citizens, in its motion for summary judgment, argued the Rosses’ claims are not covered under their homeowners insurance policy due for several reasons. First, Louisiana Citizens claimed the Rosses had sustained no direct physical loss. Louisiana Citizens further argued four exclusions to coverage applied. First, the policy provides an exclusion for losses caused by faulty, inadequate or defective materials. Next, Louisiana Citizens alleged the damages sustained by the Rosses were caused by the defective Chinese drywall, which is a latent defect. Louisiana Citizens also argues the Rosses’ claims are excluded because they are losses caused by corrosion. Louisiana Citizens further alleged the claims are excluded from coverage because the damages were caused by pollution. The trial court granted Louisiana Citizen’s cross motion for summary judgment without reasons.

Direct Physical Loss

The Rosses argue on appeal that their home did sustain a direct physical loss. The homeowners insurance policy provides that Louisiana Citizens insures against risk of direct physical loss to the property. Louisiana Citizens argued in its motion for summary judgment that the house did not suffer a direct physical loss because the drywall was physically intact and functional. However, the inherent qualities of the Chinese drywall did create a physical loss to the home and required that the drywall be removed and replaced. Thus, we find there was a direct physical loss sustained by the Rosses. Therefore, we will address the applicability of the exclusions to coverage asserted by Louisiana Citizens.

Faulty, Inadequate, or Defective Materials

In its motion for summary judgment, Louisiana Citizens contended the Rosses’ homeowners insurance policy contains an exclusion for faulty, inadequate, JjOr defective materials and the Chinese drywall, that is the source of the damages suffered by the Rosses, constitutes faulty, inadequate, or defective materials.

The Rosses’ homeowners insurance policy states:

B. We do not insure for loss to property described in Coverages A and B caused by any of the following. However, any ensuing loss to property described in Coverages A and B not precluded by any other provision in this policy is covered.
3. Faulty, inadequate or defective: ...
c. Materials used in repair, construction, renovation or remodeling;... of part or all of any property whether on or off the “residence premises.”

In their original petition, the Rosses claimed that the foreign drywall used in their home was defective and emitted sulfuric and methane gas that caused corrosion of the HVAC coils, plumbing, electrical wiring, and other household items. Louisiana Citizens argued the damages suffered by the Rosses were due to faulty or defective materials and were, thus, excluded from coverage.

On appeal, the Rosses argue this exclusion to their homeowners insurance policy does not apply because the drywall at issue is not faulty, inadequate or defective. They contend the drywall functions as drywall and serves its intended purpose. The Rosses further argue the drywall was installed prior to their purchase of the home and they did not perform any repair, construction, or renovation of the home related to the drywall. Thus, they argue the exclusion in the homeowners insurance policy for faulty, inadequate or defective materials does not apply.

Louisiana Citizens argues the damages sustained by the Rosses was directly caused by drywall that released sulfuric gas that caused corrosion of plumbing, electrical wiring and other metal components and has specifically been referred to by the Rosses as “defective”. Therefore, Louisiana Citizens contends this drywall is faulty, inadequate, or defective materials and is excluded by the homeowners insurance policy.

|sWe agree with Louisiana Citizens and find that using the plain meaning of “faulty, inadequate, or defective material” leads to a conclusion that the drywall in question is a faulty, inadequate, or defective material and is specifically excluded by the homeowner’s policy. This Chinese drywall emits high levels of sulfuric gas which caused the damages to the Rosses’ plumbing, electrical wiring and metal components. The Rosses even refer to the drywall as “defective” in their petition. Further, we do not dispute the Rosses’ contention that the drywall still functioned as drywall and remained intact in the home. Consistent with the ordinary meaning of the words “faulty” and “defective”, courts have held that the faulty material exclusion can apply even when the property in question may be serving its intended purpose. TravCo Insurance Company v. Ward, 715 F.Supp.2d 699 (E.D.Va.2010). We also agree with Louisiana Citizens and find that even if the drywall is still in place in the home, it is not truly serving its intended purpose as a component of a livable residence because of its inherent qualities of emitting the sulfuric gas.

Because we find this Chinese drywall to be faulty, inadequate or defective materials, we find the Rosses’ claims for damages caused by this Chinese drywall to be excluded under their homeowners insurance policy.

Latent Defect

Next, Louisiana Citizens alleged in its motion for summary judgment that the Rosses’ claims are excluded under the homeowners insurance policy because the Chinese drywall is a latent defect. The homeowners insurance policy provides as follows:

2. We do not insure, however, for loss:
c. Caused by: ...
(6) Any of the following: ...
l9(b) Mechanical breakdown, latent defect, inherent vice, or any quality in property that causes it to damage or destroy itself....

A latent defect is considered a defect that is hidden or concealed from knowledge, as well as from sight, and which a reasonable customary inspection would not reveal. Nida v. State Farm Fire & Casualty Company, 454 So.2d 328, 335 (La.App. 3 Cir.1984), writ denied, 458 So.2d 486 (La.1984).

Louisiana Citizens contends that, in their original petition, the Rosses allege the claimed damage was caused by hidden defects and that the emission of gases was unintentional and unknown to them. The drywall was visibly undamaged, but silently emitted gases and caused damage. The Rosses did not notice this damage until two years after purchasing the home. Thus, Louisiana Citizens alleges this drywall contained a latent defect that was hidden or concealed from knowledge and sight and a reasonable customary inspection would not reveal, so the latent defect exclusion to the homeowners insurance policy applies. However, the Rosses argue that the latent defect exclusion to the homeowners policy applies only to a loss caused by a quality in the property that causes it to damage or destroy itself.

We agree with Louisiana Citizens and find that the Chinese drywall that caused the damages sustained by the Rosses is a latent defect, which was hidden and unknown for two years. Therefore, the claims for damages are excluded from coverage under the latent defect exclusion to the homeowners insurance policy.

Corrosion

Next, Louisiana Citizens argued the claims for corrosion are excluded from coverage under the policy. The Rosses contend this exclusion does not apply in this case. The Rosses contend the damages sustained were not caused by corrosion, but the damage sustained is the actual corrosion itself.

|10The homeowners policy states:
2. We do not insure, however, for loss:
c. Caused by: ...
(6) Any of the following: ...
(c) Smog, rust or other corrosion, or dry rot.

In their petition, the Rosses claim the Chinese drywall caused corrosion of the HVAC coils, the electrical wiring, the plumbing, appliances, and jewelry in their home. Louisiana Citizens argues that since the damage in the Rosses’ residence was caused by corrosion coverage for these damages is excluded under the policy.

We find this exclusion applies to the damages alleged by the Rosses. The Rosses have specifically alleged in their petition that the emission of the gases from the drywall caused corrosion of the components in their home and they seek damages for this corrosion. The homeowners insurance policy clearly provides that Louisiana Citizens does not insure for loss caused by rust or corrosion. Thus, we find this exclusion applies and there is no coverage for the damages sustained by the Rosses.

Pollution

Next, the insurance policy with Louisiana Citizens includes an exclusion for claims caused by pollution. The homeowners policy states:

2. We do not insure, however, for loss:
c. Caused by: ...
(6) Any of the following: ...
(e) Discharge, dispersal, seepage, migration, release or escape of pollutants unless the discharge, dispersal, seepage, migration, release or escape is itself caused by a Peril Insured Against named under Coverage C.
11 pollutants means any solid, liquid, gaseous or thermal irritant or contaminant, including smoke, vapor, soot, fumes, acids, alkalis, chemicals and waste. Waste includes materials to be recycled, reconditioned, or reclaimed;

The Rosses claim the drywall emitted a sulfuric gas, which caused the damage to their home. According to the language of the policy, pollutants means any gaseous irritant or contaminant, including vapor, fumes, and chemicals. The sulfuric gas emitted from the Rosses’ drywall qualifies as a pollutant pursuant to this definition in the policy. Therefore, any damage caused by the release of these gases is excluded from coverage by the homeowners insurance policy.

Personal Property & Contents

Finally, the Rosses seek damages for various contents of their home that they allege were damaged as a result of the Chinese drywall. Louisiana Citizens argues that under the homeowners policy, personal property is covered only when one of the sixteen specified perils listed in the policy exists. The Rosses argue on appeal that one of the listed perils, smoke, does exist in this case since it is defined as the gaseous products of burning carbonaceous materials. Louisiana Citizens argues in opposition that invisible sulfuric gases that are not the product of combustion are not smoke. With regards to coverage of damage to personal property caused by smoke, the policy provides:

B. Coverage C — Personal Property
We insure for direct physical loss to the property described in Coverage C caused by any of the following perils unless the loss is excluded in Section I — Exclusions.
7. Smoke
This peril means sudden and accidental damage from smoke, including the emission or puffback of smoke, soot, fumes, or vapors from a boiler, furnace, or related equipment.
This peril does not include loss caused by smoke from agricultural smudging or industrial operations.

|12We find any claims by the Rosses for damage to their personal property are not covered under the policy. The emission of sulfuric gases from the drywall do not constitute smoke pursuant to the definition provided in the policy. The emission of these gasses was not sudden and were not fumes or vapors from a boiler, furnace, or related equipment.

Therefore, we find the claims made by the Rosses for the damages suffered as a result of the Chinese drywall in their home are excluded from coverage under their homeowners insurance policy with Louisiana Citizens for the reasons discussed above. Therefore, we find the trial court correctly granted summary judgment in favor of Louisiana Citizens and correctly dismissed the Rosses’ claims against Louisiana Citizens.

Accordingly, the trial court’s judgment is affirmed.

AFFIRMED