The full case caption appears at the
end of this opinion. DUH�, Circuit Judge: In this redhibition case arising under Louisiana law, Lindy Investments III, Magnolia Creek Apartments, and MagnoliaCreek (collectively “Appellants”) challenge the district court’s order predicating the execution of the Appellants’ judgmentupon return of defective siding to the manufacturer, Shakertown 1992, Inc. (“Shakertown”). Additionally, Appellantscontest the district court’s refusal to award “litigation-related expenses” to Appellants.
[FOOTNOTE 1] At the same time, the Appellantsand Shakertown challenge the district court’s conclusions on summary judgment regarding the scope of the commercialgeneral liability policy (the “Policy”) issued to Shakertown by Commerce and Industry Insurance Company of Canada(“C&I”). C&I cross-appealed contesting the award for diminution in value. For the reasons stated herein, we AFFIRM thetrial court’s decision except as to the issue of litigation-related expenses which we DISMISS for lack of appellatejurisdiction. BACKGROUND Appellants own and operate two apartment complexes in River Ridge, Louisiana. Appellants purchased from Shakertownand installed “Cascade Classic” exterior siding on both complexes. Cascade Classic is a cedar shingle and plywoodexterior siding that Shakertown manufactured between 1992 and early 1995. After noticing that the siding had begun to “peel” and “delaminate,” the Appellants sued Shakertown and C&I in Louisianastate court, alleging that the siding contained redhibitory defects under Louisiana law.
[FOOTNOTE 2] Defendants removed the suit tofederal court. Following a trial on the merits
[FOOTNOTE 3] , the jury found for the Appellants and awarded them a total of $298,029 for”Rescission of sale/Reduction in purchase price,” $9,059 for “Diminution of value” of the buildings and $177,418 in”Reasonable Expenses.” The jury also found that the Appellants received a total of $14,901 of value from their use of thedefective shingles. The trial court entered judgment in the amount awarded by the jury discounted by the $14,901 credit for use of theproduct and subject to judicial interest running from the date of judgment. The court conditioned execution of this judgmentupon Appellants’ return of the siding to Shakertown. Pursuant to the parties’ agreement in the pre-trial order, the court took up the issue of attorney’s fees and litigation-relatedcosts after entering judgment on the merits. The court granted Appellants’ motion for attorney’s fees and denied underFederal Rule of Civil Procedure 54(d) Appellants’ request for litigation-related expenses. The court postponeddetermination of the amount of fees and costs pending the outcome of this appeal. Appellants appealed challenging the trial court’s decisions regarding return of the siding, the denial of litigation-relatedexpenses, and the scope of C&I’s coverage. Shakertown cross-appealed challenging the summary judgment ruling limitingthe scope of C&I’s coverage. C&I cross-appealed challenging the sufficiency of Appellants’ evidence supporting theaward for diminution in value of the apartment complexes.
[FOOTNOTE 4] JURISDICTION Although no party contests our jurisdiction to decide this matter, we must on our own motion consider it. See Thornton v.General Motors Corp., 136 F.3d 450, 453 (5th Cir. 1998). Except in rare circumstances not applicable here, ourjurisdiction is limited to final decisions of the district court. See 28 U.S.C. � 1291. By separating the trial on the merits from the award of attorney’s fees and costs, the trial court has created a two-tracksystem for appeals purposes. The trial court’s decisions on the merits are appealable final orders. See Budinich v. BectonDickson and Co., 486 U.S. 196, 202-3 (1988) (“[A] decision on the merits is a ‘final decision’ for the purposes of �1291 whether or not there remains for adjudication a request for attorney’s fees attributable to the case.”). However,because the trial court has not yet determined the amount of attorney’s fees and costs due to Appellants, we do not haveappellate jurisdiction to entertain Appellants’ challenge to the denial of recovery for litigation-related expenses. SeeDeloach v. Delchamps, Inc., 897 F.2d 815, 826 (5th Cir. 1990) (“Because a judgment is not final until both liability anddamages are determined, a judgment awarding an unspecified amount of attorney’s fees is interlocutory in nature.”).Accordingly, we must dismiss for lack of appellate jurisdiction Appellants’ challenge to the trial court’s refusal to taxlitigation-related expenses as costs under Rule 54(d). REDHIBITION I. The Louisiana Law of Redhibition Redhibition is the avoidance of a sale of a defective product when the defect has rendered the product useless, or its useso inconvenient and imperfect, that the buyer would not have purchased it had he known of the defect. See La. Civ. Codeart. 2520 (1870). In general, the law requires the purchaser to “tender” the defective product to the seller before filing anyaction in redhibition. See Blue v. Schoen, 556 So.2d 1364, 1370 (La. App. 5th Cir. 1990); Vance v. Emerson, 420So.2d 1032, 1035 (La. App. 5th Cir. 1982). Under the “tender requirement,” the buyer need not physically return theproduct prior to suit; rather, he may satisfy the requirement simply by offering to return the product for repair and/orreplacement. See Mitchell v. Popiwchak, 677 So.2d 1050, 1054 (La. App. 4th Cir. 1996). Typically, the remedy contemplated in a redhibitory action is full rescission of the sale. Rescission requires the seller toreturn the purchase price and the buyer to return the thing purchased, thus placing the parties in the positions they heldbefore the sale. See Capitol City Leasing Corp. v. Hill, 404 So.2d 935, 939 (La. 1981). This “return requirement,”though involving the eventual tender of the defective product to the seller, is the end result of a successful rescission andshould not be confused with the procedural pre-filing tender requirement mentioned above. See Vance, 420 So.2d at1035. Louisiana courts typically invoke rescissionary remedies in redhibition cases where the product is totally unfit for itsintended use. When a redhibitory defect merely diminishes the product’s value or utility, however, a party can recoverquanti minoris damages for a reduction in the purchase price without having to return the defective product. See Blue,556 So.2d at 1369. The trial court has discretion to award either rescission or quanti minoris in a successful redhibitoryaction, see La. Civ. Code art. 2543 (1870); but cannot award both. See Grimes v. Alenco Window Co., 638 So. 2d1147, 1149 (La. App. 1st Cir. 1994) (“[the buyer] is not entitled to recover for both the return of the purchase price andfor replacement of the defective item.”). We must therefore determine which one of these two remedies is appropriate. The trial record clearly indicates that Appellants sought a full rescission. The district court’s pre-trial order indicates that”plaintiffs contend they are entitled to a rescission in the sale.” Although the pre-trial order mentions the possibility that theshingles may be “mechanically fastened” to the plywood in order to prevent delamination, the parties downplayed thisoption as unworkable. Moreover, in a handwritten amendment to the section of the pre-trial stipulation marked “Listing OfContested Issues Of Law” the parties struck a question asking, “If a redhibitory defect exists, whether plaintiffs are entitledto a rescission of the sale, or merely a reduction of the sales price.” Judging from the single remaining reference torescission and the striking of the on-point question of law, we conclude that as of the beginning of trial, Appellants soughtrescission.
[FOOTNOTE 5] Turning to the jury’s award, we note that the amounts awarded for “rescission of sale/reduction in purchase price” equal thestipulated purchase prices for the panels installed at both complexes. We agree with the trial court that the jury’s awardingof the exact purchase price constitutes a proper rescission of sale. That Appellants might now be required to live up totheir end of the rescissionary bargain and return the shingles should come as no surprise to them.
[FOOTNOTE 6] II. Return of the Siding Appellants argue that the district court erred in ordering them to return the siding to Appellees as a condition precedent tothe execution of the judgment. Appellants contend that the district court should not have applied Louisiana Civil CodeArticle 2532 to require return because this provision was not in effect when Appellants’ cause of action arose. In thealternative, Appellants note that Article 2532 does not require the purchaser to return the defective product “until all hisclaims, or judgments, arising from the defect are satisfied.” La. Civ. Code art. 2532 (1995). Finally, Appellants insist thatthey should be excused from the return requirement under common law principles of equity. A. Applicability of Article 2532 Article 2532 of the Louisiana Civil Code reads in relevant part: A buyer who obtains rescission because of a redhibitory defect is bound to return the thing to the seller, for which purpose he must take care of the thing as a prudent administrator, but is not bound to deliver it back until all his claims, or judgments, arising from the defect are satisfied. La. Civ. Code art. 2532 (1995). Article 2532 is a product of the 1993 amendments to the Louisiana Civil Code and itseffective date was January, 1995. Because the sale giving rise to this action occurred before the effective date of Article2532, Article 2532 itself is inapplicable. See Insurance Storage Pool, Inc. v. Parish Nat’l Bank, 732 So.2d 815, 819n.1 (La. App. 1st Cir. 1999); Jackson v. Slidell Nissan, 693 So.2d 1257, 1262 n.5 (La. App. 1st Cir. 1997).Accordingly, the district court erred in referencing Article 2532 as a basis for its decision. Nevertheless, the district courtdid not rely solely upon this Article. Rather, the court also noted that its decision was supported by “earlier case law” andin fact relied upon pre-revision case law in coming to its conclusion. Moreover, the Civil Code articles upon which thedrafters based Article 2532, namely Articles 2018 and 2033 of the Code of 1870, see 1993 La. Acts 841 � 1, were ineffect at the time that Appellants’ claims arose. Thus, the district court applied the correct law concerning return of theshingles. B. Satisfaction of Claims as Condition Precedent to Return Appellants’ reliance upon Article 2532′s provision that the purchaser need not return the defective product “until all hisclaims, or judgments, arising from the defect are satisfied,” La. Civ. Code art. 2532 (1995), is misplaced. Because Article2532 was not in effect at the time of the transaction, it cannot guide our decision in this case. See Insurance StoragePool, 732 So.2d at 819 n.1; Jackson, 693 So.2d at 1262 n.5. Instead, we must look to pre-amendment law to determinethe validity of this condition. Before the enactment of Article 2532, Louisiana courts required “return of the thing” either as a condition precedent to theexecution of the judgment or as a condition subsequent to it. Compare Prince v. Paretti Pontiac Co., Inc., 281 So.2d112, 117 (La. 1973) (“[T]here will be judgment in favor of plaintiff, . . . in the amount of $4959.37, . . . conditioned uponthe return of [plaintiff's] 1970 Pontiac Lemans.”); Peoples Furniture & Gift v. Carson Hicks/Friedricks Refrigeration,Inc., 326 So.2d 919, 924 (La. App. 3rd Cir. 1976) (“[A]s a condition precedent to the execution of this judgment againstdefendants, plaintiff is ordered to return the air conditioning unit to the defendants.”) with Associates Fin. Serv. Co., Inc.,382 So.2d 215, 222 (La. App. 3rd Cir. 1980) (“[Defendant must] pay and discharge remaining obligation [on a truck] . . .contingent that upon payment of said sum, [financing company] deliver the subject truck to [defendant].”); Murret v. MarkII Elec. of La., Inc., 169 So.2d 556, 559-60 (La. App. 4th Cir. 1964). (“[D]efendant . . . [must] deliver to plaintiffs theirpromissory note . . . . [D]efendant is declared entitled to possession of the equipment upon [delivery of the note].”). Aspre-amendment law recognized both approaches as acceptable, the district court did not err in requiring return of theshingles as a condition precedent to the execution of the Appellants’ judgment. C. Equitable Avoidance of the Return Requirement Appellants insist that the district court erred in not excusing the return requirement. They note that Louisiana law does notrequire the purchaser to return a defective product when the product has been “consumed by use.” See Walton v. Katz &Besthoff, 77 So.2d 563, 566 (La. App. Orl. 1955) (holding that plaintiff could sue for rescission of sale of defective paintdespite his inability to return the paint and restore the status quo ante because paint was consumed by use). Appellants relyprimarily upon our decision in PPG Indus., Inc. v. Industrial Laminates Corp., 664 F.2d 1332 (5th Cir. 1982), and theLouisiana Fourth Circuit’s decision in Frank Brigtsen, Inc. v. Swegel, 258 So.2d 579 (La. App. 4th Cir. 1972) tosupport their consumed by use claim. We find neither of these cases dispositive. In PPG we did not address whether the products at issue, spandrel wall panels, were consumed by use and thereforeunreturnable. We simply recognized that for statute of limitations purposes a case may sound in redhibition even if thedefective product cannot be returned to the seller. See PPG, 664 F.2d at 1335. We did not determine that the spandrelpanels were or were not returnable. See id. As a result, PPG cannot support Appellants’ claim that the shingles wereconsumed by use. Appellants’ interpretation of Brigtsen conflates the tender requirement with the return requirement. In Brigtsen ahomeowner purchased 20,000 “Spanish moss simulated old” bricks. The homeowner had installed 6,500 of these bricks.It rained that night, washing off the bricks’ coating. The homeowner complained to the seller and asked that the sellerinspect the installed bricks. After inspection, the seller hauled away the remaining 13,500 bricks and sued the homeowneron the open account for the 6,500 installed bricks and drayage costs.
[FOOTNOTE 7] The homeowner sued in reconvention claiming thatthe coating on the bricks was defective. The trial court and the court of appeal agreed with the homeowner and assesseddrayage costs to the seller. See Brigtsen, 258 So.2d at 579-581. On application for rehearing, the court of appeal appended to its decision a per curiam denial of rehearing addressing thetender requirement. The court waived the pre-filing tender requirement noting that: To require the [homeowner] to incur the additional cost of removing the installed bricks from the garage in addition to drayage costs, in order to tender them to plaintiff, would, in our opinion, be an exercise in futility and onerous, therefore unreasonable in these circumstances. Id. at 581. As the court’s original opinion assessed drayage fees to the seller, this reference to the homeowner’s bearingdrayage costs makes sense only in reference to a hypothetical pre-filing tender. Moreover, the case upon which the courtrelied in reaching this conclusion, Zibilich v. Metry Upholstery, Inc., 148 So.2d 436 (La. App. 4th Cir. 1963), examinedthe pre-filing tender requirement. Finally, the Brigtsen court’s conclusion that “[t]he law does not require one to do a vainand useless thing,” Brigtsen, 258 So.2d at 581-82 citing Harkness v. Leggett, 131 So. 190 (La. 1930); Perkins v.Chatry, 58 So.2d 349, 352 (La. App. Orl. 1952), stems from a long line of Louisiana cases involving waiver of allegedlyfutile pre-filing requirements, see Louisiana Highway Comm’n v. Bullis, 200 So. 805 (La. 1941) (waiving need fortender of true value of land before eminent domain proceeding); MacLeod v. Hoover, 105 So. 305 (La. 1925) (waivingneed for tender prior to finalization of tax sale); Southern Sawmill Co. v. Ducote, 46 So. 20 (La. 1908) (waiving defaultrequirement when obligor fails to manufacture and deliver goods within a fixed time); Dwyer v. Tulane Educ. Fund’sAdm’rs., 17 So. 796 (La. 1895) (waiving default requirement when contractor cannot complete building on time); and,thus, is not an exception to the return requirement. Louisiana’s “consumed by use” case law holds plaintiffs to a very high standard: a product is consumed by use only if it”obviously cannot be returned.” Walton, 77 So.2d at 566 (used paint); see also, Rapides Grocery Co., Inc. v. Clopton,131 So. 734 (La. 1930) (planted seeds); Greenburg v. Fourroux, 300 So.2d 641 (La. App. 3rd Cir. 1974) (deadpuppy), Molbert Bros. Poultry & Egg Co. v. Montgomery, 261 So.2d 311 (La. App. 3rd Cir. 1972) (dead chickens).The mere fact that a product may be useless once returned does not warrant waiver of the return requirement. See Vance,420 So.2d at 1035 (holding that defective custom carpet must be returned to seller despite the fact that the returned carpetwould be useless to the seller). We have not discovered any evidence in the record suggesting that it would be impossible to remove the siding from theapartment buildings. In fact, testimony indicates that the siding can be removed. Although it will certainly be costly toremove it and it will be of little value once removed, Louisiana law mandates that the parties be put back in the positionsthey held before the sale. To this end, the court properly ordered the Appellees to return the purchase price minus anappropriate discount for the value Appellants’ received from use of the shingles
[FOOTNOTE 8] and to pay an additional $177,000 forthe “reasonable expenses” Appellants will incur in removing the siding. In exchange, Appellants must return the siding as acondition precedent to the judgment. INSURANCE COVERAGE The trial court ruled on summary judgment that the C&I Policy covers only the jury awards for diminution in value, costs,and reasonable attorney’s fees.
[FOOTNOTE 9] The trial court based its decision on the Policy’s “work product exclusion” whichprovides that the Policy does not apply to “property damage to [Shakertown's] products arising out of such products orany part of such products.” Both the Appellants and Shakertown challenge this ruling and insist that the Policy covers theawards for the purchase price and reasonable expenses as well as the above mentioned awards. Their argument isthree-fold. First, they argue that the work product exclusion is irreconcilable with the Policy’s “warranty exception” whichexcludes coverage for Shakertown’s liability “under any contract or agreement” except for “a warranty of fitness or qualityof products or work which is implied by statute.” Second, they contend that even if the policy is unambiguous, the workproduct exclusion is inapplicable because the Appellants incorporated the shingles into their buildings making them nolonger Shakertown’s product. Finally, they allege that under Louisiana law when a defective product is incorporated into alarger work, work product exclusions do not apply to the costs associated with repair and replacement of the defectiveproduct and that, accordingly, the Policy covers the award of “reasonable expenses.” I. Ambiguity We agree with the trial court and find no conflict between the work product exception and the warranty exception. UnderLouisiana law, work product exclusions provide no coverage to the insured for damage to his own product or for repairand/or replacement of his defective product. See Aetna Ins. Co. v. Grady White Boats, Inc., 432 So.2d 1082, 1085(La. App. 3d Cir. 1983). As we have previously held, work product exclusions act simply to limit coverage to damage tothe products of parties other than the insured. See Gulf Miss. Marine Corp. v. George Engine Co., Inc., 697 F.2d 668,670 (5th Cir. 1983). In this case, such a limited policy exclusion does not wholly thwart the working of the warrantyexception, as redhibition contemplates monetary liability beyond damages to the defective product itself. See La. Civ.Code art. 2545 (1968). As such, we see no ambiguity in the Policy and no error in the trial court’s resolution of this issue. II. Incorporation of the Siding into the Structure Appellants and Shakertown cite no Louisiana law suggesting that incorporation of an insured’s product into a largerstructure makes the product no longer the “insured’s product.” Moreover, we have not found any Louisiana authoritysuggesting that Civil Code Articles 465 and 493.1 regarding the attachment of products to immovables somehow worksuch a transformation. The closest that any court interpreting Louisiana law has come to addressing Appellants’ and Shakertown’s argument is ourdecision in Gulf Mississippi where we held that “where the work of the insured involves assembling, repairing, or installingparts owned by another entity, the completed whole is not regarded as the insured’s product within the meaning of [asimilar] exclusion clause.” Gulf Miss., 697 F.2d at 673. Inasmuch as “a subcontractor who installs components owned bythe principal into a completed work” is not “the manufacturer of the whole,” see id. at 672, Louisiana law does notrecognize the argument that incorporation of a product into a larger entity transforms that product for “work productexclusion” purposes. Moreover, we note that the non-Louisiana cases relied upon by the Appellants and Shakertowninvolve substantially more drastic “incorporation” than that which the siding has undergone. See Imperial Cas. & Indem.Co. v. High Concrete Structures, 858 F.2d 128 (3rd Cir. 1988) (converting raw steel into beveled washers); Firemen’sIns. Co. v. Bauer Dental Studio, Inc., 805 F.2d 324 (8th Cir. 1986) (converting manufacturer’s gold crown into apatient’s filling through dental workmanship); Aetna Cas. & Sur. Co. v. M&S Indus., Inc., 827 P.2d 321, 327 (Wash.App. Div. 2 1992) (converting “plywood panels into an entirely different product designed to contain poured concrete” inwhich the plywood “was only one component of the finished product”). Accordingly, the trial court did not err in rejectingthis argument. III. Coverage for Repair and Replacement as Reasonable Expenses Appellants and Shakertown contend that the work product exception does not exclude from coverage the repairing andreplacing of a defective product incorporated into a larger work; and, thus, that the Policy covers the award of reasonableexpenses. This proposition is directly contrary to Louisiana law. First, as as the trial court noted, the award for reasonableexpenses is to compensate for the original installation and subsequent removal costs, not for repair and replacement of thedefective siding. Second, the cases cited by the Appellants and Shakertown reiterate that work product exceptionsproperly exclude coverage for damage caused to the defective product itself. See Gardner v. Lakvold, 521 So.2d 818,820 (La. App. 2nd Cir. 1988); Superior Steel, Inc. v. Bituminous Cas. Corp., 415 So.2d 354, 357 (La. App. 1st Cir.1982). The award for reasonable expenses does no more than compensate the Appellants for the damage to the sidingthat resulted from their defective nature. Appellants’ and Shakertown’s argument is simply an incorrect reading of Louisianalaw. CONCLUSION For the foregoing reasons we DISMISS the issue of litigation-related expenses for lack of appellate jurisdiction andAFFIRM the trial court’s decision on all other counts. :::FOOTNOTES:::
FN1 Appellants’ argument that they are entitled to prejudgment interest on their award is not properly before this court asthe issue was not included in the pre-trial order. See Elvis Presley Enter., Inc. v. Capece, 141 F.3d 188, 206 (5th Cir.1998) (“[I]f a claim or issue is omitted from the [pre-trial] order, it is waived, even if it appeared in the complaint.”)
FN2 La. Civ. Code art. 2520 et seq. (1870) Appellants sued C&I under the auspices of Louisiana’s direct action statute,La. Rev. Stat. � 22:655 (1989)
FN3 By agreement of the parties in the pre-trial order, the court severed the issue of “recovery of attorney’s fees andlitigation-related costs” and had the parties “try the issue to the court pending the outcome of the jury trial.”
FN4 Upon careful review of the record we find Appellants’ expert testimony regarding diminution in value sufficient tosupport the jury’s award.
FN5 Although the parties’ did not strike their reference to the plaintiffs’ entitlement to rescission vis a vis reduction in the”Listing of Contested Issues of Fact,” we are confident that because this is not an issue of fact and the parties specificallydeleted its appropriate listing as an issue of law their agreement to try this as a rescission case is manifest.
FN6 Appellants’ argument that Appellees’ failure to mention the return requirement until after the jury came to its decisionconstitutes unfair surprise and a waiver of the requirement is wholly without merit. Appellants’ brief repeatedly confuses thepre-filing tender requirement with the post-judgment return requirement. Although under Louisiana law failure of tender isan affirmative defense that must be raised by a dilatory exception of prematurity, see Burns v. Lamar-Lane Chevrolet,Inc., 354 So.2d 620, 622 (La. App. 1st Cir. 1977), the return requirement is the generally required result of rescissionand thus does not need to be separately pled.
FN7 Drayage costs are the costs of hauling away the unused bricks.
FN8 Appellants insistence that the award of a “discount for use” changes the jury’s award from rescission into quantiminoris is simply incorrect. See Alexander v. Burroughs Corp., 359 So.2d 607, 610-11 (La. 1978) (holding that acredit for purchaser’s use of a product may be appropriate in rescission even in favor of a bad faith seller or manufacturer);Peoples Furniture, 326 So.2d at 924 (awarding $600 credit for use of defective air-conditioning unit in rescission case).
FN9 We review a grant of summary judgment de novo, viewing the facts and inferences in the light most favorable to theparty opposing the motion. See Hall v. Gillman, Inc., 81 F.3d 35, 36-37 (5th Cir. 1996). Summary judgment isappropriate if the record discloses “that there is no genuine issue as to any material fact and that the moving party is entitledto a judgment as a matter of law.” Fed. R. Civ. P. 56(c); accord Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
Lindy Investments, et al. v. Shakertown Corp., et al. UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 98-30971 LINDY INVESTMENTS, LP, ETC; ET AL; PlaintiffsLINDY INVESTMENTS III, a Louisiana Limited Partnership; MAGNOLIA CREEK APARTMENTS, a LouisianaPartnership; Plaintiffs-Appellants-Cross-AppelleesMAGNOLIA CREEK, Louisiana Limited Corp., Appellant-Cross-Appellee VERSUS SHAKERTOWN CORPORATION; ET AL; DefendantsSHAKERTOWN 1992 INC; COMMERCE AND INDUSTRY INSURANCE CO. OF CANADA,Defendants-Appellees-Cross-Appellants Appeals from the United States District Court For the Eastern District of Louisiana May 2, 2000 Before KING, Chief Judge, DUH� and DeMOSS, Circuit Judges.
