STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
14-350
EMILE MOUTON
VERSUS
GENERAC POWER SYSTEMS, INC., ET AL.
**********
APPEAL FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF LAFAYETTE, NO. 2012-2312 HONORABLE EDWARD D. RUBIN, DISTRICT JUDGE
PHYLLIS M. KEATY JUDGE
Court composed of Elizabeth A. Pickett, James T. Genovese, and Phyllis M. Keaty, Judges.
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.
Matthew D. McConnell McConnell Law Offices Post Office Box 52024 Lafayette, Louisiana 70505-2024 (337) 347-6404 Counsel for Plaintiff/Appellant: Emile Mouton Ronald J. White Murphy, Rogers, Sloss & Gambel 701 Poydras Street, Suite 400 New Orleans, Louisiana 70139 (504) 523-0400 Counsel for Defendant/Appellee: Generac Power Systems, Inc.
Cearley W. Fontenot Oats & Marino 100 East Vermilion Street, Suite 400 Lafayette, Louisiana 70501 (337) 233-1100 Counsel for Defendant/Appellee: Metro Electric & Maintenance, Inc. 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.
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:
1 Louisiana Civil Code Article 2520 provides:
The seller warrants the buyer against redhibitory defects, or vices, in the thing sold.
A defect is redhibitory when it renders the thing useless, or its use so inconvenient that it must be presumed that a buyer would not have bought the thing had he known of the defect. The existence of such a defect gives a buyer the right to obtain rescission of the sale.
A defect is redhibitory also when, without rendering the thing totally useless, it diminishes its usefulness or its value so that it must be presumed that a buyer would still have bought it but for a lesser price. The existence of such a defect limits the right of a buyer to a reduction of the price.
2 (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.
3 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 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
2 Louisiana Civil Code Article 3499 provides that “[u]nless otherwise provided by legislation, a personal action is subject to a liberative prescription of ten years.”
4 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.”
Metro Electric states that Comment (b) simply explains that there is not an
unlimited time to discover a defect and refers to La.Civ.Code art. 3499 as the
maximum time limit for a party to bring a redhibitory action. Metro Electric
3 According to Goodman v. Roberts, 587 So.2d 807 (La.App. 3 Cir. 1991), a manufacturer is presumed to know of the defect in its product. As such, prescription commences to run against the manufacturer one year after discovery of the defect by the consumer. Id. This presumption is codified in La.Civ.Code art. 2545.
5 contends that Comment (b) provides an absolute deadline of ten years for
prescription of a redhibitory claim in conjunction with the discovery of a defect.4
We agree with Metro Electric in that Mouton’s reliance on Comment (b) is
misplaced. As cited by Generac, Cunard Line Ltd. Co. v. Datrex, Inc., 05-1171, p.
7 (La.App. 3 Cir. 4/5/06), 926 So.2d 109, 114, provides that when a cause of action
is based on a defect, “it is limited to the prescriptive period for redhibitory defects
and may not avail itself of the ten-year prescriptive period for conventional
obligations.” Since the petition alleges that the generator “began to show signs
that it was defective” and that the generator “has proven defective for purposes of
Louisiana redhibition law,” it is clear that Mouton’s cause of action lies in
redhibitory law. As such, the ten-year prescription period is inapplicable, and we
must review the petition to determine whether Mouton’s cause of action prescribed
within the four-year or one-year period provided for in La.Civ.Code art. 2534(A)(1)
and La.Civ.Code art. 2534(B).
Normally, “[t]he party pleading prescription has the burden of proof.” Ins.
Storage Pool, Inc. v. Parish Nat’l Bank, 97-2757, p. 7 (La.App. 1 Cir. 5/14/99),
732 So.2d 815, 820. “If on the face of the petition it appears prescription has run,
however, the burden shifts to the plaintiff to prove a suspension or interruption of
the prescriptive period.” Reno v. Perkins Engines, Inc., 98-1686, p. 2 (La.App. 1
Cir. 9/24/99), 754 So.2d 1032, 1034 (footnote/citation omitted), writ denied, 99-
3058 (La. 1/7/00), 752 So.2d 863. Thus, we will review the petition to see if
prescription has run on its face.
4 The federal court in Tiger Bend, stated that La.Civ.Code art. 3499 is not a preemptive provision but rather a prescriptive provision. As such, it is subject to suspension and interruption. The court explained that under La.Civ.Code art. 2534, “the running of prescription depends on the plaintiff’s knowledge of the cause of action, i.e., discovery of the defect.” Id. at 691.
6 In his petition, Mouton states that the sale of the generator took place on
August 29, 2006. Mouton alleges that soon after installation, the generator “began
to show signs that it was defective.” Mouton contends that “[w]ithin the first year
that it was placed in service METRO ELECTRIC personnel reported that the
cooler filler cap and the starter required replacement/repair.” Mouton alleges that
“[i]n August and September 2008, the Standby Generator failed to provide
automatic substitute electrical power when the utility service was interrupted
during Hurricanes Gustav and Ike, respectively.” Mouton contends that the
generator “has failed to function properly and/or required repair service every year,
up to and including 2012, since it was purchased and installed.”
Metro Electric’s job tickets and Generac’s warranty claims, which are
contained in the record, support Mouton’s allegation in his petition that the
generator required repairs in 2006 and 2007 for a radiator cap and a starter.
Defendants’ records, however, fail to show that repairs were performed after 2007.
In his discovery responses, which are contained in the record, Mouton was unable
to provide evidence showing that the generator required repair after 2007.
Thus, November 11, 20075 was the date of the last repair that occurred on
the machine.6 The four-year prescriptive period began to run on November 11,
2007 and prescribed on November 11, 2011. Mouton filed suit on April 23, 2012.
Based on the face of the petition, the four-year prescriptive period had run. The
5 Generac’s records show that November 11, 2007 was the date that the starter was replaced. 6 Although Mouton did not specifically state that November 11, 2007 was when the generator was repaired, his petition states that “[w]ithin the first year that it was placed in service METRO ELECTRIC personnel reported that the cooler filler cap and the starter required replacement/repair.” Since Mouton’s petition states that it was purchased in 2006, 2007 would be “within the first year that it was placed in service.”
7 burden, therefore, shifted to Mouton to prove a suspension or interruption of the
prescriptive period.
In that regard, Mouton contends in his appellate brief that prescription was
interrupted annually from 2006 through 2012 when Metro Electric performed
maintenance and service on the generator pursuant to the maintenance contract.
Mouton alleges that prescription began anew every year when Metro Electric
tendered the generator back to Mouton. We disagree.
The annual maintenance contracts which are contained in the record as
exhibits show that Metro Electric serviced the generator twice a year. This
included a complete check-up of the operation of the equipment. Metro Electric
also inspected the following: fuel lines for wear, cracks, and leaks; exhaust system
for safety and leaks; exhaust lines, muffler for cracks and leaks; drain moisture
from condensation traps; air shrouds for leaks and security; clean cooling fins;
check electrical wire for fray and connections; fuel filter, battery water, gravity of
cells and connections; generator brushes and bearings; alternator for charging;
control box wiring, voltage frequency settings; transfer switch for proper settings
and operation; includes if needed: spark plugs, points, and condenser; and replace
oil, oil filter, and air filter twice a year.
Metro Electric’s job tickets which are also contained in the record show the
notes taken during the regularly-scheduled maintenance performed after
November 11, 2007. Specifically, no problems were reported on April 9, 2008.
On March 18, 2009, a latch on the machine was broken. A broken latch does not
interfere, however, with the operation of the generator. On September 16, 2009,
the broken latch was replaced. On April 14, 2010, no problems were noted. On
May 21, 2011, and October 29, 2011, the generator was noted to be in good
8 condition. During Metro Electric’s final maintenance of the generator on July 13,
2012, it was noted that the generator “[c]ranked [r]ight up.” The foregoing shows
that the generator did not fail during the regularly-scheduled testing. In his petition
and discovery responses, Mouton also stated that the generator “usually performed
appropriately for regular-scheduled testing.”
Keeping in mind the annual tests, we point to Williams v. Ford Motor Co.,
307 So.2d 159 (La.App. 1 Cir. 1974), writ denied, 309 So.2d 684 (La.1975), a first
circuit case cited by Defendants wherein the plaintiff brought a redhibitory action
against the manufacturer and dealer to rescind the sale of a car. The trial court
dismissed the action, and the plaintiff appealed. The appellate court affirmed the
trial court’s judgment and held that “[i]t is well settled in our jurisprudence that
where the seller attempts to remedy a defect in the object sold, the one year
prescription in bringing the redhibitory action begins to run only from the time the
seller abandons his attempt to repair the defect.” Id. at 160. The appellate court
stated:
Based upon the facts presented we sustain the judgment of the trial court. Plaintiff shows that she returned her automobile to Richard’s Ford Company, Inc. on October 27, 1972, and complained about excessive oil consumption and a defective speedometer. The speedometer was repaired and the engine was filled with oil. No work was performed on the engine to correct the excessive use of oil. Plaintiff was billed for this service but she testifies that she never paid this bill. Plaintiff next returned her automobile to the defendant on February 22, 1973, for a State Safety Inspection and her horn was repaired at this time for inspection purposes for which she was billed and for which she paid. Subsequently plaintiff had her automobile serviced and repaired at establishments other than that of the defendant.
At the time that this suit was filed more than one year had elapsed since the last time the defendant may be presumed to have made an attempt to remedy the defects of which plaintiff complained. The running of prescription was not interrupted on February 22, 1973, when the horn was repaired for the purposes of safety inspection.
9 Id. (emphasis added).
Similar to the safety inspection in Williams, the generator in the present case
was inspected and serviced by Metro Electric twice a year pursuant to the
maintenance contract. Just as the court in Williams found that the repair of the
horn did not address the defects complained of in the plaintiff’s petition, the annual
maintenance performed on the generator in the present case, which Mouton
admitted was successful, did not address the defects complained of in his petition.
Thus, the annual inspections in the present case did not interrupt prescription as per
Williams. For the same reasons cited in Williams, the broken latch Mouton
complained of, and which was repaired in 2009, also failed to interrupt prescription.
We further find that Mouton’s claim prescribed pursuant to the one-year
prescriptive period provided for in La.Civ.Code art. 2534(A)(1) and La.Civ.Code
art. 2534(B). In that regard, “prescription begins to run when the defect manifests
itself, not on the date the underlying cause of the defect is found.” Am. Zurich Ins.
Co. v. Caterpillar, Inc., 12-270, p. 3 (La.App. 3 Cir. 10/3/12), 99 So.3d 739, 741.
Mouton provided supplemental discovery responses which are contained in the
record wherein he lists the following dates that his generator failed to work during
power outages: September 27, 2006; December 13, 2006; July 1, 2007; March 6,
2008; August 7, 2010; November 26, 2010; December 27, 2010; January 31, 2012;
February 26, 2012; August 19, 2012; and October 5, 2012. Since the last repair
occurred on November 11, 2007, the next time Mouton experienced a power
outage following the last repair was on March 6, 2008. At this point, Mouton
should have known that the generator did not work despite the repairs. He also
10 should have known that he had one year to assert a redhibitory action, i.e., until
March 6, 2009.
Mouton’s supplemental discovery responses further indicated that there were
no power outages in 2009. As mentioned above, the generator worked for the
annual maintenance which occurred during 2009. Mouton contends that his
generator failed to work on August 7, 2010, November 26, 2010, and December 27,
2010. Even if Mouton had no knowledge of a defect in the years prior to 2010, he
should have known of a defect following these three power outages in the latter
part of 2010. He should have discovered a defect by December 27, 2010. At that
point, the one-year prescriptive period began to run at which time Mouton had
until December 27, 2011, to assert a claim for redhibition. Suit was not filed until
over one year later on April 23, 2012, and, thus, was untimely. Similarly, Metro
Electric’s subsequent repair to the generator in February 2012 did not interrupt
prescription since prescription had already run on December 27, 2011.
Thus, any claim for redhibition utilizing the four-year prescriptive period or
one-year prescriptive period prescribed by April 23, 2012. Accordingly, the trial
court was not manifestly erroneous in granting Defendants’ exceptions of
prescription.
B. Negligent Installation
Mouton further contends that the trial court manifestly erred in granting
Metro Electric’s peremptory exception on his negligent installation claim. Mouton
alleges that his negligent installation claim is timely pursuant to the ten-year
prescriptive period provided for in La.Civ.Code art. 3499.7 In opposition, Metro
7 Louisiana Civil Code Article 3499 provides, “[u]nless otherwise provided by legislation, a personal action is subject to a liberative prescription of ten years.”
11 Electric cites Sharpe v. Claiborne Enterprises, Inc., 461 So.2d 591 (La.App. 1 Cir.
1984), writ denied, (La.1985), 464 So.2d 302, in support of its argument that
Mouton’s suit prescribed. Metro Electric contends that the one-year prescriptive
period governing redhibitory defects is applicable rather than the ten-year
prescriptive period governing breach or negligent execution of an installation
contract.
In Sharpe, a purchaser of automobile wheels brought suit against the seller
for injuries sustained in an automobile accident. Believing that the one-year
prescriptive period was applicable rather than the ten-year prescriptive period, the
trial court granted a peremptory exception in favor of the defendant. On appeal,
the issue was which prescriptive period applied.
Notably, the plaintiffs alleged that when they purchased the wheels from the
defendant, the sales contract was both a contract to sell and a contract to install the
wheels on the vehicle. The plaintiffs contended that the defendant’s negligence in
improperly installing the wheels constituted a negligent breach of the installation
contract which gave rise to a breach of contract claim for personal injury damages.
In opposition, the defendants argued that any contractual liability was governed by
the sales articles on redhibition because the principal obligation of the contract was
that of sale.
The appellate court in Sharpe noted that in reviewing prior cases regarding
the characterization of sales and service contracts, the principal obligation of the
contract determines its characterization. In affirming the trial court’s judgment, the
appellate court held:
We are not convinced by the allegations of plaintiffs’ petition that Claiborne entered into an installation contract with Mr. Sharpe. The principal obligation of the contract was the sale of the mag
12 wheels. The fact that Claiborne undertook to install them on the truck incidental to the sale does not change the transaction from that of a sales contract to an installation contract. “The mere fact that an obligor may be involved in the installation and delivery of the equipment will not change the characterization of the obligation from that of a sales contract and therefore the rules governing a sale will control.”
Id. at 593 (citations omitted).
Similar to the facts in Sharpe, the generator in the present case was
purchased on or about August 29, 2006. Thus, the principal obligation of the
contract was the sale of the generator. The fact that Metro Electric installed it at
Mouton’s residence in addition to the sale does not change the transaction from
that of a sales contract to an installation contract. Accordingly, the one-year
prescriptive period governing redhibitory defects governs. Given the applicability
of the one-year prescriptive period, Mouton’s suit for negligent installation has
prescribed pursuant to our reasoning above. Accordingly, the trial court was not
manifestly erroneous in granting Defendants’ exceptions with respect to his
negligent installation claim.
II. Necessity of Sworn Affidavits or Testimony
In his second assignment of error, Mouton alleges that the trial court was
manifestly erroneous in relying on Defendants’ alleged facts which were not
proven through sworn affidavits or testimony. Evidence introduced by Defendants
was in the form of Metro Electric equipment maintenance contracts, the petition,
warranty claims submitted to Generac for the two repairs required in 2006 and
2007, and the maintenance records. According to the trial transcript, Mouton did
not object to the inclusion of the documents into the record. Rather, he adopted the
exhibits as his at the hearing.
13 Louisiana Code of Civil Procedure Article 931 provides, in pertinent part:
“On the trial of the peremptory exception pleaded at or prior to the trial of the case,
evidence may be introduced to support or controvert any of the objections pleaded,
when the grounds thereof do not appear from the petition.” While the statute
indicates that evidence may be introduced, it fails to state that such evidence must
be in the form of sworn affidavits or testimony. Mouton, likewise, has failed to
cite any authority in support of his position. On the other hand, Generac correctly
cites Boneno v. Lasseigne, 514 So.2d 276, 279 (La.App. 5 Cir. 1987), wherein the
court held that a sworn affidavit is hearsay and there is “no such statutory
exception permitting the use of affidavits in a trial of a peremptory exception of
prescription.” Since there is no requirement that sworn affidavits or testimony
must be utilized and since Louisiana jurisprudence directly conflicts with
Mouton’s allegation, the trial court was not manifestly erroneous in relying on
Defendants’ evidence even though it was not in the form of sworn affidavits or
testimony.
III. Contra Non Valentum
Mouton also asserts that the doctrine of contra non valentum suspends
prescription. The right to assert this doctrine, according to Mouton, arises from the
generator inspection wherein defects were revealed. Mouton further asserts that
this right also stems from modification and repair attempts after installation which
concealed problems.
Louisiana jurisprudence recognizes contra non valentem as a way to suspend
prescription when the circumstances fall into one of the four following categories:
(1) where there was some legal cause which prevented the courts or their officers from taking cognizance of or acting on the plaintiff’s action; (2) where there was some condition coupled with the contract
14 or connected with the proceedings which prevented the creditor from suing or acting; (3) where the debtor himself has done some act effectually to prevent the creditor from availing himself of his cause of action; and (4) where the cause of action is not known or reasonably knowable by the plaintiff, even though this ignorance is not induced by the defendant.
Wells v. Zadeck, 11-1232, pp. 8-9 (La. 3/30/12), 89 So.3d 1145, 1150.
Our review of the petition shows that Mouton alleges that the generator
never properly worked and was defective from the time it was purchased in 2006.
The contra non valentum defense Mouton asserts, however, is based on the alleged
concealment of the defect. Concealment of a defect directly contradicts Mouton’s
redhibition claim. Thus, Mouton’s contra non valentum defense fails.
IV. Material Issues of Fact
In his third assignment of error, Mouton contends that the trial court
manifestly erred in granting Defendants’ exceptions by summary judgment where
he presented material issues of fact.
Our review of the record shows that the exceptions were peremptory
exceptions of prescription. As previously discussed, there is no requirement for
the submission of sworn affidavits or testimony “[o]n the trial of the peremptory
exception.” La.Code Civ.P. art. 931. Since the matter before the trial court was
not on summary judgment which is tried utilizing affidavit testimony, Mouton’s
assignment of error is without merit. Accordingly, the trial court was not
manifestly erroneous in this regard.
V. Credibility Determinations
In his fourth assignment of error, Mouton contends that the trial court
manifestly erred by making impermissible credibility determinations. Mouton
alleges that since he submitted sworn affidavit testimony creating a material issue
15 of fact, the trial court made an impermissible credibility determination whereby it
favored Defendants’ evidence as opposed to his affidavit. In support, Mouton cites
Independent Fire Insurance Co. v. Sunbeam Corp., 99-2181, 99-2257, p. 4 (La.
2/29/00), 755 So.2d 226, 236, for the proposition that “the trial judge cannot make
credibility determinations on a motion for summary judgment.”
As previously mentioned, this was not a summary judgment hearing wherein
the outcome depends on affidavit testimony. Accordingly, Mouton’s assignment
of error is without merit, and the trial court was not manifestly erroneous in this
regard.
VI. Adequate Discovery
In his fifth assignment of error, Mouton contends that the trial court
manifestly erred when it denied him time to conduct adequate discovery before
hearing Defendants’ exceptions of prescription.
Our review of Defendants’ exceptions shows that they were based on the
time the lawsuit was filed and on Mouton’s discovery responses. As indicated
above, the lawsuit is prescribed on its face. Since the filing of the lawsuit occurred
on April 24, 2012, and in addition to the reasons explained above, December 27,
2011, was the latest date that the lawsuit could have been filed. Mouton had
enough time to conduct discovery. According to Mouton’s expert’s report,8 which
is contained in the record, his expert inspected the generator in September 2012.
Since this inspection occurred nine months prior to the June 24, 2013 hearing on
the exceptions, Mouton had that time, i.e., nine months, to conduct discovery of an
alleged concealment of a defect. Accordingly, Mouton’s assignment of error is
without merit, and the trial court was not manifestly erroneous in this regard.
8 Mouton’s expert is Joey Meloz.
16 VII. Alternative Legal Theories of Liability
In his sixth assignment of error, Mouton contends that the trial court
manifestly and legally erred by dismissing the entire lawsuit even though
Defendants’ exceptions challenged only a couple of his alternative theories of
liability. Mouton filed suit against Defendants for redhibition, negligent
installation, breach of contract, negligent maintenance, and negligent repair.
Mouton asserts that his redhibitory and negligent installation claims were the only
two claims challenged in Defendants’ exceptions.9 Since Defendants’ exceptions
failed to challenge his breach of contract, negligent maintenance, and negligent
repair claims, Mouton contends that the trial court was manifestly erroneous in
dismissing these claims.
In its peremptory exception of prescription, Metro Electric excepted to
Mouton’s lawsuit on the grounds that it “has prescribed and that [Mouton] has no
right of action in Redhibition or negligent installation pursuant to La. C.C. art.
2520, et seq.” Metro Electric challenged only Mouton’s redhibition and negligent
installation claims.
In its peremptory exception of prescription, Generac excepted to Mouton’s
lawsuit “on the grounds that [Mouton’s] claims . . . against Generac under
Louisiana redhibition law, La. Civ. Code art. 2520, et seq., are prescribed.” Thus,
Generac challenged only Mouton’s redhibition claim.
In order to succeed on a breach of contract claim, the plaintiff must prove
the existence of a contract, a breach of that contract, and damages. See Ledet v.
Campo, 12-1193 (La.App. 3 Cir. 3/16/13), 128 So.3d 1034. In his petition,
9 Mouton contends that Metro Electric challenged his redhibition and negligent installation claims whereas Generac challenged only his redhibition claim.
17 Mouton alleged that he “has annually purchased from METRO ELECTRIC an
Equipment Maintenance Contract to maintain” the generator. According to
Mouton, the generator “failed to function properly and/or required repair service
every year, up to and including 2012” and each time he reported problems, Metro
Electric “responded by purportedly servicing the [generator] and representing that
the problem was taken care of and that [it] would function appropriately ‘next
time.’” Mouton alleged that, despite Metro Electric’s “repeated annual
assurances,” the generator would “provide automatic substitute electrical service,”
it “NEVER provided automatic substitute electrical service in the event of an
actual interruption in electrical-utility service.” Although Metro Electric
supposedly “fixed” a problem in February of 2012, Mouton “recall[ed] that the
alleged problem on the occasion of that service was one that previously had
reportedly been fixed already.” Based on the foregoing allegations, Mouton
contended that Defendants were liable to him for “Breach of Contract and/or
Implied and/or Express Warranties” along with “Negligent Installation,
Maintenance, and/or Repair.” In his prayer for relief, Mouton seeks actual,
consequential, and incidental damages; rescission, including reimbursement of the
purchase price along with maintenance and repair costs; attorney fees; court costs;
Upon review of Mouton’s petition and accepting his well-pleaded
allegations as true, we find that he sufficiently pled that a contract existed between
he and Metro Electric. Mouton alleged that Metro Electric, in failing to comply
with the requirements provided for in the maintenance contract, breached the
contract between the parties and that, as a result of its breach, Mouton suffered
damages. Mouton has likewise asserted a claim for negligent maintenance and
18 negligent repair since both arise out of Metro Electric’s alleged breach of the
maintenance contract.
In determining whether Mouton’s contractual claims have prescribed against
Metro Electric, the maintenance contract must be viewed separately from the sale
and installation contract. The principal obligation of the maintenance contract,
which was annually renewed, was that of maintaining the generator. Mouton
signed the final maintenance contract in July of 2011. A breach of contract claim
“is subject to a liberative prescription of ten-years.” La.Civ.Code art. 3499. Based
upon the face of the petition, Mouton’s claims for breach of contract, negligent
maintenance, and negligent repair were timely filed and have not prescribed.
Accordingly, the trial court was manifestly erroneous in dismissing Mouton’s
contractual claims against Metro Electric.
On the other hand, the petition is void of any allegations regarding a
contractual relationship existing between Mouton and Generac. Therefore,
Mouton failed to state a cause of action against Generac for breach of contract,
negligent maintenance, or negligent repair. Accordingly, the trial court was not
manifestly erroneous in granting Generac’s exception.
This matter is remanded to the trial court for further proceedings on the
contractual claims against Metro Electric only.
DECREE
The judgment of the trial court is affirmed in part, reversed in part, and
remanded. All costs of this appeal are divided equally between Plaintiff/Appellant,
Emile Mouton, and Defendant/Appellee, Metro Electric & Maintenance, Inc.