Smith v. Cappaert Manufactured Hous., Inc.

• Decision Date: 30 May 2012
• Docket Number: No. CA 11–1464.,CA 11–1464.
• Citation: 89 So.3d 1234
• Parties: Crystal SMITH, et al. v. CAPPAERT MANUFACTURED HOUSING, INC., et al.
• Court: Court of Appeal of Louisiana — District of US

89 So.3d 1234

Crystal SMITH, et al.

v.CAPPAERT MANUFACTURED HOUSING, INC., et al.

No. CA 11–1464.

Court of Appeal of Louisiana, Third Circuit.

April 10, 2012.

Rehearing Denied May 30, 2012.

Fred A. Pharis, Pharis Law Offices, Alexandria, LA, Hon. Jerold Edward Knol, The Knoll Law Firm, L.L.C., Marksville, LA, for Plaintiffs/Appellees, Barbara Thronson, Gary Thronson, Judy St. Romain, Rodney St. Romain.

Albert Dale Clary, Adrian G. Nadeau, Mark L. Barbre, Long Law Firm, L.L.P., Baton Rouge, LA, for Defendant/Appellant, Cappaert Manufactured Housing, Inc.Court composed of OSWALD A. DECUIR, JIMMIE C. PETERS, and J. DAVID PAINTER, Judges.

PETERS, J.

[3 Cir. 1]This appeal arises from a suit in redhibition filed by Gary and Barbara Thronson and Rodney and Judy St. Romain ¹ against Cappaert Manufactured Housing, Inc. (Cappaert), the manufacturer of the homes at issue. Cappaert now appeals the trial court's judgment rescinding both sales and awarding the plaintiffs monetary damages. For the following reasons, we amend the trial court's award of damages to the Thronsons by giving Cappaert credit for the rental income the Thronsons received after they vacated the home and affirm the trial court's judgment as amended.

REVIEW OF THE RECORD

The St. Romains bought their home in 1998, and the Thronsons purchased their home in 2003. The original purchase price for the St. Romains' home was $56,710.00, and the Thronsons paid $26,500.00 for their home. In their January 31, 2005 petition for personal injury damages and recission of the sale, the plaintiffs' main complaint centered around the fact that mold and mildew had become a major problem inside the homes. Expressed in its simplest terms, the mold and mildew complaints related primarily to problems with a vinyl wall covering on the living-space side of each home's walls. When the air conditioning system cooled the home's interior, the hot and humid air that entered the wall cavities from the outside would condense as it pressed against the cooled vinyl wall. The moisture that condensed in the wall cavities sustained the growth of mold and mildew. However, the plaintiffs did not assert that the mold and mildew problems were caused solely from the use of the vinyl wall covering on the inside of the walls. They also suggested that other manufacturing defects existed which allowed an [3 Cir. 2]excess of moist outside air to come into the wall cavities. These included leaky air-conditioning ductwork, which created a negative pressure in the house, pulling in more moist outside air, and that there existed a lack of return air pathways.

A bench trial resulted in a judgment granting the Thronsons and the St. Romains recission of the sale of their homes and awarding them finance charges, judicial interest, and attorney fees. After the trial court rejected its motion for a new trial, Cappaert perfected this appeal. In its appeal, Cappaert asserts eight assignments of error: 1) the judgment is an absolute nullity, 2) federal HUD standards for manufactured homes preempt Louisiana's law of redhibition, 3) the trial court wrongly interpreted HUD regulations, 4) the plaintiffs' claims were prescribed, 5) the trial court erred in not considering Cappaert Manufacturing Housing's expert witnesses' testimony and erred in relying on testimony from the plaintiffs' expert witness, 6) the award of both contractual and judicial interest was an improper double recovery, 7) the plaintiffs' awards should have been reduced because the plaintiffs lived in or rented their homes through the date of trial, and 8) the trial court erred in finding a redhibitory defect in the St. Romain home.

OPINION

Assignment of Error Number One

Cappaert argues in its first assignment of error that the trial court judgment is an absolute nullity because the presiding judge's pro tempore assignment had ended before the judgment was issued. This issue arises because the matter was initially set for trial before Judge William J. Bennett, but Judge Ronald D. Cox actually heard the trial pursuant to a Louisiana Supreme Court appointment “as judge pro tempore ... effective for the dates of May 2, 2011 through May 6, 2011, [3 Cir. 3]subject to the completion of unfinished business.” ² Cappaert argues that, because Judge Cox was appointed as a judge pro tempore, rather than an ad hoc judge, those actions in the litigation which took place after May 6, 2011, were void.

The change in judges came about because at a status conference held on May 2, 2011, the day before trial, the parties were informed that Judge Bennett's father was to undergo surgery, and Judge Cox would replace him. Jury selection began on May 3, 2011, and the jury trial itself began the next day. Two days thereafter, all the claims of the remaining plaintiffs in the litigation were settled except for the redhibition claims of the Thronsons and the St. Romains. Judge Cox dismissed the jury at this point, and these remaining claims moved forward as a bench trial.

After Judge Cox dismissed the jury on May 4, 2011, he continued hearing the redhibition claims until May 10, 2011. Judge Cox ultimately rendered written reasons for judgment on May 24, 2011, and executed a written judgment on June 3, 2011. Cappaert then filed a motion for new trial, which Judge Cox rejected on July 1, 2011. As his final act in the litigation, Judge Cox signed an order granting Cappaert's appeal on September 2, 2011.

Louisiana Constitution Article Five, Section Five, (A) provides that “[t]he supreme court has general supervisory jurisdiction over all other courts. It may establish procedural and administrative rules not in conflict with law and may assign a sitting or retired judge to any court.” (Emphasis added.) While it is true that the supreme court's appointment of Judge Cox carried a basic time period [3 Cir. 4]from May 2 through May 6, 2011, it also provided that the appointment would be extended “subject to the completion of unfinished business.” The conclusion of the ongoing trial, the issuance of written reasons for judgment, the rendering of a judgment, the decision on the motion for new trial, and the grant of a devolutive appeal to this court are all “unfinished business” from this case.

We find no merit in this assignment of error.

Assignment of Error Number Two

Next, Cappaert asserts that the federal Housing and Urban Development (HUD) standards preempt Louisiana redhibition law for the plaintiffs' allegations regarding the vinyl wall covering. We find no merit in this assignment of error as well.

Federal provisions may preempt state law under the theories of express preemption, field preemption, and conflict preemption. Cappaert alleges that the plaintiffs' state law claims for recission of the sales must be dismissed because of conflict preemption, which occurs “when it is impossible to comply with both the federal and state provisions or when application of state law stands as an obstacle to the accomplishment and execution of Congress's full objectives and purposes.” Badon v. R.J. Reynolds Tobacco Co., 05–1048, p. 8 (La.App. 3 Cir. 7/12/06), 934 So.2d 927, 933.

In making its argument on this issue, Cappaert directs us to 42 U.S.C.A. § 5403(d), which states in pertinent part that:

[w]henever a Federal manufactured home construction and safety standard established under this chapter is in effect, no State or political subdivision of a State shall have any authority either to establish, or to continue in effect, with respect to any manufactured home covered, any standard regarding the construction or safety applicable to the same aspect of performance of such manufactured home which is not identical to the Federal manufactured home construction and safety standard. Federal preemption under this subsection shall be broadly and liberally construed to ensure that disparate State or local requirements or standards do not affect the [3 Cir. 5]uniformity and comprehensiveness of the standards promulgated under this section nor the Federal superintendence of the manufactured housing industry as established by this chapter.

We note, however, that 42 U.S.C. § 5409(c) states that “[c]ompliance with any Federal manufactured home construction or safety standard issued under this chapter does not exempt any person from any liability under common law.” Thus, while Louisiana may not establish its own standards for construction of manufactured housing if they differ from the federal law, claims under state law, including one for recession of a sale, may be brought so long as they advance non-compliance with existing federal regulations or non-compliance with state standards that are not preempted by federal regulations. In Re: FEMA Trailer Formaldehyde Products Liability Litigation, 620 F.Supp.2d 755 (E.D.La.2009).

Louisiana Revised Statutes 51:911.23(B), which governs redhibitory actions for manufactured homes, specifically provides that “[i]n any redhibitory action brought against the seller of a manufactured home or mobile home, the standards set forth in the [National Manufactured Housing Construction and Safety Standards Act of 1974, 42 U.S.C. 5401 et seq.] shall be considered in establishing and determining whether or not a defect exists.” In the matter now before us, the plaintiffs' redhibition claims are based on the assertion that Cappaert did not comply with the federal standards, specifically 24 C.F.R. § 3280.303, which states, in pertinent part:

(a) Minimum requirements. The design and construction of a manufactured home shall conform with the provisions of this standard. Requirements for any size, weight, or quality of material modified by the terms of minimum, not less than, at least, and similar expressions are minimum standards. The manufacturer or installer may exceed these standards provided such deviation does not result in any inferior installation or defeat the purpose and intent of this standard.

[3 Cir. 6]b) Construction. All construction methods shall...