Guillory v. Jim Tatman's Mobile Homes, Inc.

• Decision Date: 25 June 1986
• Docket Number: No. 85-874,85-874
• Parties: Erma Jane GUILLORY, Plaintiff-Appellee, v. JIM TATMAN'S MOBILE HOMES, INC., Defendant-Third Party Plaintiff-Appellee, and Brigadier Homes, Inc., Defendant-Third Party Defendant-Appellant.
• Court: Court of Appeal of Louisiana — District of US

Page 1185

490 So.2d 1185

Erma Jane GUILLORY, Plaintiff-Appellee, v. JIM TATMAN'S MOBILE HOMES, INC., Defendant-Third Party Plaintiff-Appellee and Brigadier Homes, Inc., Defendant-Third Party Defendant-Appellant.

No. 85-874.

Court of Appeal of Louisiana Third Circuit.

June 25, 1986.

Jones, Tete, Gregory Massey, Lake Charles, for defendant-appellant.

Felix DeJean and Thomas DeJean, Sandoz, Sandoz & Schiff, Lawrence B. Sandoz, Jr., Opelousas, for plaintiff-appellee.

Before DOMENGEAUX and KNOLL, JJ., and BROYLES, J. Pro Tem. ^*

DOMENGEAUX, Judge.

Plaintiff-appellee, Erma Jane Guillory, instituted this suit in redhibition to recover the purchase price of a mobile home sold to her by defendant-third party plaintiff-appellee, Jim Tatman's Mobile Homes, Inc., and manufactured by defendant-third party defendant-appellant, Brigadier Homes, Inc. The plaintiff's suit was against both Jim Tatman's Mobile Homes and Brigadier Homes. Jim Tatman's Mobile Homes filed a third party demand against Brigadier Homes.

Judgment was granted in favor of plaintiff against both Jim Tatman's Mobile Homes and Brigadier Homes. Judgment was also rendered in favor of Jim Tatman's Mobile Homes on its third party demand against Brigadier Homes for any and all sums which Jim Tatman's was liable for to the plaintiff in the main demand.

On August 1, 1983, Erma Jane Guillory purchased a mobile home from Jim Tatman's Mobile Homes, Inc. The mobile home was a 1984 Admiral manufactured by Brigadier Homes. The total purchase price of the home was $28,295.04, of which plaintiff paid a cash down payment of $24,000.00 at the time of purchase.

Shortly after the plaintiff moved into the home numerous defects became apparent, the most serious of which was a defective roof. Attempts were made to repair the complained of defects, but the repairs to the roof proved to be of no avail. Ultimately, the plaintiff was offered a new mobile home to replace the defective home. However, the plaintiff refused to accept the home which was offered to her.

On April 27, 1984, the plaintiff filed suit against Jim Tatman's Mobile Homes and Brigadier Homes, alleging that the mobile home was redhibitorily defective and praying that the sale be rescinded, the purchase price returned to her, and that damages be awarded her for mental anguish and attorney's fees.

Jim Tatman's Mobile Homes, Inc. answered the plaintiff's petition and filed a third party demand against Brigadier Homes, Inc., seeking recovery for any amounts which Jim Tatman's Mobile Homes would be cast for in the original demand.

Brigadier Homes filed a motion for summary judgment alleging that the plaintiff was not entitled to recover damages for mental pain and anguish in the absence of physical injury to the plaintiff's person or property. The district judge denied the motion.

A trial on the merits was held and the district judge filed extensive oral (which were transcribed into the record) and written reasons for judgment into the record. The district judge found that the mobile home had a redhibitorily defective roof which because of its severity required that the contract of sale be rescinded. The trial judge determined that the defect in the roof resulted from an error or omission in the manufacturing process and thus Brigadier Homes was the cause of the redhibitory defect. The district court noted that Jim Tatman's Mobile Homes was a good faith vendor because they were not aware of the redhibitory defect when they sold the trailer house to the plaintiff. However, Brigadier Homes, as the manufacturer, was presumed to know the defect in the home as of the time of the sale and therefore the district court ruled that it was in bad faith.

Pursuant to the district judge's factual findings he ordered that the sale between the vendee-plaintiff, Mrs. Guillory, and the vendor-defendant, Jim Tatman's Mobile Homes, and the manufacturer-defendant, Brigadier Homes, be rescinded and that the parties defendant return the purchase price and the finance charges which the plaintiff had incurred. The district judge then gave a corresponding indemnity award to Jim Tatman's Mobile Homes against the manufacturer Brigadier Homes, as per La. C.C. Art. 2531.

The judgment of the district court provided that the judgment awarding the return of the purchase price and the finance charges in favor of the plaintiff was against both Jim Tatman's Mobile Homes and Brigadier Homes.

The trial judge then went on to award in favor of the plaintiff, Mrs. Guillory and against Brigadier Homes, $10,000.00 for mental anguish, $2,270.00 for future medical expenses, and $6,500.00 for attorney's fees. The district court then granted to Brigadier Homes against any monies it owed to the plaintiff a $50.00 per month credit for the rental of the mobile home from the date of purchase through the date the home was returned.

Finally, the trial court awarded in favor of Jim Tatman's Mobile Homes and against Brigadier Homes $5,000.00 in attorney's fees.

The defendant-third party defendant-appellee, Brigadier Homes, appeals the decision of the district court and submits four assignments of error:

(1) Whether the district court erred by awarding non-pecuniary damages of mental anguish to a plaintiff in a redhibitory action when the principal object of the sale contract was not intellectual enjoyment.

(2) Whether the district court erred in considering the plaintiff's inconvenience and frustration in determining the credit to which defendant is entitled for the plaintiff's use of the mobile home where damages for mental anguish had already been awarded to the plaintiff.

(3) Whether the trial court abused its discretion in awarding $6,500.00 in attorney's fees to the plaintiff and $5,000.00 in attorney's fees to Jim Tatman's Mobile Homes.

(4) Whether the district court erred in awarding damages for mental anguish and future medical expenses if it is found that the plaintiff breached her duty to mitigate the damages.

ASSIGNMENT OF ERROR NO. 1

The appellant alleges that although this mobile home contained a redhibitory defect, the district court erred when it awarded non-pecuniary damages of mental anguish to the plaintiff because "the principal object of the contract was not intellectual enjoyment and the breach of the contract was not one that sounds in tort."

We find that the appellant's contention is without merit and find that the district judge's award of damages for mental anguish in a redhibition case was correct based upon the recent decisions in Fontenot v. F. Hollier & Sons, 478 So.2d 1379 (La.App. 3rd Cir.1985), writ granted, 481 So.2d 1326 (La.1986), and Bourne v. Rein Chrysler-Plymouth, Inc., et al, 463 So.2d 1356 (La.App. 1st Cir.1984), writ denied, 468 So.2d 570 (La.1985).

The Fontenot case and the Bourne case have recently interpreted the Louisiana Supreme Court case of Philippe v. Browning Arms Co., 395 So.2d 310 (La.1980), and hold that:

" ' Philippe v. Browning Arms Co., supra, in our opinion, is authority for the proposition that the purchaser who sustains damages because he or she purchased a redhibitorily defective product is entitled to be compensated for all provable damages, including inconvenience and mental anguish, if the causation link is established. Philippe, supra, mandates judicial repudiation of the blanket exclusion of damages for inconvenience and mental anguish in redhibition and quanti minoris actions. To knowingly sell a redhibitorily defective product, such knowledge being imputed to a manufacturer, is to do a tortious act. It is well settled that a tortfeasor's victim who sustains mental anguish as a result of the action or inaction of the tortfeasor is entitled to be compensated for it.' Bourne v. Rein Chrysler-Plymouth, Inc., 463 So.2d 1356, at page 1360 (La.App. 1st Cir.1984), writ den., 468 So.2d 570 (La.1985)."

Here, Brigadier Homes, Inc. is a manufacturer who is presumed to know the vices of the things it sells. Alexander v. Burroughs Corp., 359 So.2d 607 (La.1978). Therefore, the sale of the redhibitorily defective mobile home by Brigadier to Jim Tatman's and ultimately to the plaintiff constituted a tortious act for which Brigadier is responsible. There is sufficient proof in the record that Mrs. Guillory sustained mental anguish as a result of the sale by Brigadier of the defective mobile home and therefore we conclude in light of Fontenot, supra, and Bourne, supra, that the district court was correct in awarding Mrs. Guillory non-pecuniary damages for mental anguish. ¹

ASSIGNMENT OF ERROR NO. 2

The appellant contends that in view of the fact that the plaintiff received an award for the mental anguish which she suffered, it was error for the district court to consider the inconvenience and frustration that the plaintiff experienced in determining the credit to which appellant was entitled for plaintiff's use of the mobile home.

The appellant put on evidence that a mobile home comparable to the one at issue without a defective roof would rent for from between $300.00 to $325.00 per month. The district judge only awarded the appellant a $50.00 per month rent credit because of the inconvenience suffered by the plaintiff.

We are of the opinion that an award of damages for mental anguish and an award of damages for inconvenience are two separate and distinct compensations.

The definition of "mental anguish" as found in Black's Law Dictionary, Revised Fourth Edition, is:

"MENTAL ANGUISH. When connected with a physical injury, this term includes both the resultant mental sensation of pain and also the accompanying feelings of distress, fright, and anxiety. In other connections, and as a ground for damages or an element of damages, it includes the mental suffering resulting from the excitation of the more poignant and painful emotions, such as grief, severe disappointment, indignation, wounded pride, shame, public humiliation, despair, etc." [Citations omitted]

"Inconvenience", as a noun,...