Mouton v. Generac Power Sys., Inc.

• Citation: 152 So.3d 985
• Decision Date: 05 November 2014
• Docket Number: No. 14–350.,14–350.
• Parties: Emile MOUTON v. GENERAC POWER SYSTEMS, INC., et al.
• Court: Court of Appeal of Louisiana (US)

152 So.3d 985

Emile MOUTON
v.
GENERAC POWER SYSTEMS, INC., et al.

No. 14–350.

Court of Appeal of Louisiana, Third Circuit.

Nov. 5, 2014.

152 So.3d 987

Matthew D. McConnell, McConnell Law Offices, Lafayette, LA, for Plaintiff/Appellant, Emile Mouton.

Ronald J. White, Murphy, Rogers, Sloss & Gambel, New Orleans, LA, for Defendant/Appellee, Generac Power Systems, Inc.

Cearley W. Fontenot, Oats & Marino, Lafayette, LA, for Defendant/Appellee, Metro Electric & Maintenance, Inc.

Court composed of ELIZABETH A. PICKETT, JAMES T. GENOVESE, and PHYLLIS M. KEATY, Judges.

Opinion

KEATY, Judge.

Plaintiff appeals from the trial court's judgment granting Defendants' exceptions of prescription. For the following reasons, the trial court's judgment is affirmed in part, reversed in part, and remanded.

152 So.3d 988

FACTS AND PROCEDURAL BACKGROUND

On or about August 29, 2006, Plaintiff, Emile Mouton, purchased a residential generator from, and which was subsequently installed by, Metro Electric & Maintenance, Inc. The generator was manufactured by Generac Power Systems, Inc. Mouton also purchased an equipment maintenance contract from Metro Electric that became effective on September 5, 2006. Pursuant to this maintenance contract, Metro Electric was obligated to service the generator twice a year. Mouton continued purchasing this maintenance contract annually through July of 2011, and it expired in July of 2012.

Mouton contends that during this six-year period from 2006 to 2012, the generator failed to perform properly and/or required repair service every year. On April 23, 2012, Mouton filed suit against Defendants for the following: “A. Redhibition/Rescission; B. Breach of Contract and/or Implied and/or Express Warranties; C. Negligent Installation, Maintenance, and/or Repair.” Mouton seeks reimbursement of the purchase price of the generator along with maintenance and repair costs. Mouton requests attorney fees, non-pecuniary damages, court costs, and legal interest.

Defendants filed answers which included affirmative defenses and peremptory exceptions. In its answer, Metro Electric filed a cross-claim adverse to Generac as the manufacturer. Mouton subsequently answered written discovery and supplied Defendants with his expert's report. Prior to Defendants' experts' inspection of the generator, each Defendant filed exceptions of prescription, alleging that Mouton's suit had prescribed under Louisiana redhibition law pursuant to La.Civ.Code art. 2520.¹ Metro Electric further asserted that Mouton had no right of action for negligent installation pursuant to La.Civ.Code art. 2520.

Mouton subsequently filed a motion to continue the hearing on the peremptory exceptions which were scheduled for June 24, 2013. Since Generac's expert inspected the generator on May 15, 2013, Mouton alleged that the extra time would allow him to propound written discovery and obtain depositions from Generac's expert on prescriptive issues. The motion to continue was denied. After the hearing, the trial court granted all of Defendants' exceptions without reasons, dismissing the entire lawsuit against both Defendants.

Mouton then filed a motion for new trial and/or to amend judgment seeking to reverse the trial court's judgment on grounds of prescription and alternatively seeking to amend the judgment to reinstate the breach of service contract and negligent maintenance and repair claims. The trial court denied the motion, and Mouton appealed.

On appeal, Mouton asserts the following six assignments of error:

152 So.3d 989

(1) the trial court manifestly erred in granting Defendants' exceptions of prescription regarding his redhibitory and negligent installation claims;

(2) the trial court manifestly erred in relying on facts alleged by Defendants although not proven by sworn affidavits or testimony;

(3) the trial court manifestly erred in granting Defendants' exceptions via summary judgment where Mouton presented material issues of fact;

(4) the trial court manifestly erred by making impermissible credibility determinations;

(5) the trial court manifestly erred by denying Mouton time to conduct adequate discovery before it heard Defendants' exceptions of prescription; and

(6) the trial court manifestly and legally erred by dismissing the entire lawsuit even though Defendants' exceptions challenged only a couple of Mouton's alternative legal theories of liability.

STANDARD OF REVIEW

At the outset, we note that evidence was submitted at the hearing on the exceptions. In that regard, Louisiana jurisprudence provides for the following standard of review:

If evidence is introduced at the hearing on the peremptory exception of prescription, the district court's findings of fact are reviewed under the manifest error-clearly wrong standard of review. Stobart v. State, through DOTD, 617 So.2d 880, 882 (La.1993). If the 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. Id., 617 So.2d at 882–83.

Menard v. Iberia Parish Sheriff's Office, 11–707, p. 2 (La.App. 3 Cir. 12/7/11), 77 So.3d 1090, 1092 (quoting Rando v. Anco Insulations, Inc., 08–1163, p. 20 (La.5/22/09), 16 So.3d 1065, 1082 ), writ denied, 12–73 (La.3/9/12), 84 So.3d 553. Thus, we will review the trial court's findings of fact utilizing the manifest error-clearly wrong standard of review.

DISCUSSION

I. Prescription as to Redhibition and Negligent Installation

A. Redhibition

In Louisiana, prescription in a redhibition claim is codified at La.Civ.Code art. 2534 which provides:

A. (1) The action for redhibition against a seller who did not know of the existence of a defect in the thing sold prescribes in four years from the day delivery of such thing was made to the buyer or one year from the day the defect was discovered by the buyer, whichever occurs first.

....

B. The action for redhibition against a seller who knew, or is presumed to have known, of the existence of a defect in the thing sold prescribes in one year from the day the defect was discovered by the buyer.

C. In any case prescription is interrupted when the seller accepts the thing for repairs and commences anew from the day he tenders it back to the buyer or notifies the buyer of his refusal or inability to make the required repairs.

Comment (b) under La.Civ.Code art. 2534 further provides that “[u]nder this Article, an action in redhibition prescribes ten years from the time of perfection of the contract regardless of whether the seller

152 So.3d 990

was in good or bad faith. See C.C. Art. 3499.”²

In his first assignment of error, Mouton contends that the trial court manifestly erred in granting Defendants' exceptions regarding his redhibitory claim. Mouton states that the ten-year prescriptive period as stated in Comment (b) is applicable. Since the petition was filed on April 23, 2012, which was less than six years after the generator was purchased, Mouton contends that it has not prescribed on its face as to his redhibition claim.

In opposition, Defendants contend that the ten-year prescriptive period is inapplicable. Metro Electric contends that the four-year or one-year prescriptive period is applicable pursuant to La.Civ.Code art. 2534(A)(1). As a manufacturer, Generac contends that only the one-year prescriptive period, as opposed to the four-year prescriptive period, applies to it pursuant to La.Civ.Code art. 2534(B).³ Metro Electric further states that Mouton's reliance on Comment (b) is misplaced.

In support of its argument that Mouton's reliance on Comment (b) is misplaced, Metro Electric cites the Louisiana federal court case of Tiger Bend, L.L.C. v. Temple–Inland, Inc., 56 F.Supp.2d 686 (M.D.La.1999). In Tiger Bend, 56 F.Supp.2d at 690, the court analyzed Comment (b) as follows:

[O]fficial comment (b) of article 2534 explains that this article does not allow an unlimited time period to discover a defect. The comment points to La.Civ.Code Art. 3499 as the maximum time limit in which a party can bring a claim for redhibition. The comment states that “[u]nder this article [2534], an action in redhibition prescribes ten years from the time of perfection of the contract regardless of whether the seller was in good or bad faith.” Article 3499, which is referenced in article 2534 comment (b), explains that “[u]nless otherwise provided by legislation, a personal action is subject to a liberative prescription of ten years.”

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