Riche v. Krestview Mobile Homes, Inc.

• Decision Date: 25 July 1979
• Docket Number: No. 7021,7021
• Court: Court of Appeal of Louisiana — District of US
• Parties: Jacyntha L. RICHE, Plaintiff-Appellee, v. KRESTVIEW MOBILE HOMES, INC. and Redman Industries, Inc., Defendants- Appellants.

Page 133

375 So.2d 133

Jacyntha L. RICHE, Plaintiff-Appellee, v. KRESTVIEW MOBILE HOMES, INC. and Redman Industries, Inc.,

Defendants- Appellants.

No. 7021.

Court of Appeal of Louisiana, Third Circuit.

July 25, 1979.

Rehearing Denied Sept. 4, 1979.

Stafford, Randow, O'Neal & Smith, Larry A. Stewart, Gold, Little, Simon, Weems & Bruser, Larry Feldman, Jr., Alexandria, for defendant-appellant-appellee.

Don R. Wilson, Marksville, for plaintiff-appellee.

Before DOMENGEAUX, GUIDRY and CUTRER, JJ.

DOMENGEAUX, Judge.

This is a redhibitory action in which plaintiff, Jacyntha L. Riche, the purchaser of a mobile home, seeks recovery against both the vendor and manufacturer of the mobile home.

The facts of this case may be stated as follows: On May 26, 1977, plaintiff purchased a mobile home from Krestview Mobile Homes, Inc., hereinafter referred to as Krestview, in Alexandria, Louisiana. The mobile home had been manufactured by Redman Industries, Inc., hereinafter referred to as Redman, of Dallas, Texas, and was sold to Krestview approximately one year prior to plaintiff's purchase. The purchase price was $11,346.00 and this sum was financed by Krestview, who assigned a note and mortgage to the CIT Financial Corporation. The home was delivered to plaintiff's lot near Cottonport, Louisiana, by George Pias, a salesman and employee of Krestview.

Shortly after the delivery of the home, Mrs. Riche encountered difficulty with the sewerage disposal system. She contacted Mr. Pias, and this problem was repaired to plaintiff's satisfaction by Krestview. Thereafter, on August 25, 1977, plaintiff again reported to Krestview certain problems which she was experiencing with the mobile home, specifically, leaks from the bathroom vents, improper closure of windows, and defects in the kitchen cabinets of the unit. Krestview notified Redman, which in turn sent out a local repairman, Sam Bollinger, to inspect and repair the home. These repairs were completed around September 3, 1977. According to Mr. Bollinger, after the repairs were effected, there remained nothing significantly wrong with the mobile home.

Some time after Mr. Bollinger's visit, plaintiff had additional problems with her home. This was primarily due to the existence of a leak under the floor of the master bedroom. Plaintiff testified that, despite numerous attempts to contact Krestview in order to inform them of this problem, she received no satisfaction until she spoke with the new manager of Krestview, Mr. Brenton Gates, on December 6, 1977. Mr. Gates immediately notified Redman of plaintiff's complaints. Redman asserts that it gave Mr. Gates full authority to repair the home. The evidence indicates that Mr. Gates did subsequently contact plaintiff in order to ask her if the unit could be inspected. However, at that late stage, Mrs. Riche refused to comply, apparently deciding to refer the matter to her attorney.

As a consequence of the many problems experienced by plaintiff with her mobile home, suit in redhibition was filed on January 4, 1978, seeking rescission of the sale of the mobile home, return of the purchase price, damages, and attorney's fees, against both Krestview and Redman. On April 13, 1978, Redman, the manufacturer, filed a third party demand against Krestview, the seller, for contribution or indemnity of any amounts which it might be liable to pay to plaintiff. On April 14, 1978, Krestview filed a third party demand against Redman for any amounts which it might be liable to pay to plaintiff. On August 22, 1978, Krestview filed a supplemental and amending third party demand, in which it also sought attorney's fees against the manufacturer, Redman.

After trial, the district judge awarded the return of the purchase price, together with all incidental expenses to the plaintiff against Krestview and Redman, in solido. Additionally, the trial judge found Redman liable for $400.00 of rental fees paid by plaintiff for a substitute home, and $1,000.00 for the embarrassment and inconvenience suffered by her because of the redhibitory defects. Redman was also assessed for attorney's fees in favor of plaintiff in the amount of $3,500.00. The trial judge awarded Krestview judgment on its third party demand against Redman for the amount which Krestview had to pay to plaintiff, and also included an award of $3,000.00 attorney's fees on behalf of Krestview against Redman. The trial judge rejected entirely the third party demand filed by Redman against Krestview. All costs were assessed against the manufacturer, Redman.

From this judgment, both Redman, the manufacturer, and Krestview, the seller, appeal. In addition, Krestview answers the appeal of Redman, seeking an increase in attorney's fees for services required on appeal; and plaintiff answers the appeals of both Redman and Krestview, seeking an increase in attorney's fees for services rendered on appeal, as well as an increase in damages.

On appeal, both Krestview and Redman contend that the evidence introduced into the record fails to support the trial court's award in redhibition to the plaintiff. Furthermore, defendant Redman, asserts that the trial court improperly granted Krestview's third party demand, for the reason that Krestview was in breach of a contract effective between the parties as to their respective liabilities. Redman seeks to recover damages on appeal for Krestview's alleged breach of contract. Additionally, Redman argues that the trial court erred in awarding plaintiff $1,000.00 in non-pecuniary damages for embarrassment and inconvenience. Finally, as indicated above, both Krestview and plaintiff contend that they are entitled to increased attorney's fees on appeal; and plaintiff seeks to recover additional damages from Redman for her rental payments necessitated by the defects existing in the mobile home.

The trial judge, in his written reasons, stated the following:

"The court heard a lot of evidence on the part of the interested parties. The court has considered all this evidence very carefully. It is of the opinion that the great preponderance of the evidence support the allegations of Plaintiff that the mobile home she purchased had many substantial hidden redhibitory vices in it, and that if she had known of such or been made aware of same, she would never have purchased it. She tried, according to her testimony, to get the defects and vices fixed by her vendor. So, many times, she was unable to get telephone responses at the vendor's office. She finally employed counsel, who made demands for a rescission of the sale in December of 1977. This was refused by the vendor and suit to rescind was filed on January 4, 1978, by her attorney. While she continued to occupy the mobile home with her children, until July of 1978, she had to move out because of rotting floors, holes in the floor, and dangers in occupancy that became obvious. So, she and her children abandoned the trailer home and rented a frame house.

At the time of trial, a Mr. L. O. Ferguson, who was in the mobile home business for years, testified that it would cost $1800.00 to $2000.00 to repair the trailer to the condition it was supposed to be, for the occupancy intended. And, one of defendant's experts, who is employed by Redman, testified it would cost at least $1,500.00. So, unquestionably, the vices complained of were and are substantial, and the court believes and holds she is entitled to rescind the sale and to collect damages as well as recover the purchase price she paid for same."

We are unable to find any error in the judgment of the trial court by allowing rescission.

A redhibitory defect sufficient to entitle a buyer to annul a sale is a defect in the item sold which renders it absolutely useless, or makes the use of the item so inconvenient or imperfect that it must be supposed that had the buyer known of the vice he would not have purchased the item. La.C.C. art. 2520. Additionally, it must be established that the defects existed at the time of purchase, but were neither known nor apparent to the purchaser, and that the seller could not, or would not, correct the defects when given the opportunity to do so. La.C.C. arts. 2530, 2531. Purvis v. Statewide Trailer Sales, Inc., 339 So.2d 403 (La.App. 1st Cir. 1976).

The plaintiff's burden of proof in an action in redhibition is discharged by establishing the existence of a defect in the item at the time of sale by either direct or...