Garner v. Louisiana Housing

798 So. 2d 295, 2000 La.App. 4 Cir. 2226, 2001 La. App. LEXIS 2166, 2001 WL 1203227
CourtLouisiana Court of Appeal
DecidedSeptember 26, 2001
DocketNo. 2000-CA-2226
StatusPublished
Cited by1 cases

This text of 798 So. 2d 295 (Garner v. Louisiana Housing) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Garner v. Louisiana Housing, 798 So. 2d 295, 2000 La.App. 4 Cir. 2226, 2001 La. App. LEXIS 2166, 2001 WL 1203227 (La. Ct. App. 2001).

Opinion

1DAVID S. GORBATY, Judge.

In this appeal, Louisiana Housing contends that the trial court erred in rescinding the sale of a mobile home bought by the plaintiffs, returning to them the purchase price, and awarding them an additional $29,333.50 in damages, plus legal interest, costs, and attorney’s fees. For the reasons set forth below, we affirm.

FACTS AND PROCEDURAL HISTORY

On January 23, 1996, plaintiffs, Michael and Linda Garner (“the Garners”), and Travis Knight, on behalf of Rose Discount Mobile Homes, Inc., d/b/a Louisiana Housing (“Rose”), executed a Plain Language Purchase Agreement and an Installment Contract and Security Agreement for the sale of a 1996 Southern Dream double-wide mobile home for the purchase price of $61,953.00. Rose ordered the mobile home from the manufacturer, Southern Life/ Style Homes, Division of Southern Energy Homes, Inc. (“Southern Homes”).

Upon delivery to the designated site, Rose was responsible for installation of the two pre-fabricated halves. Installation included placing the two units in position, blocking, anchoring, lag bolting, foaming, installing a roof cap, and Ltrimming the inside and outside cosmetics. Pursuant to an agreement with Rose, Lloyd Cernich performed this work. After installation was completed, the Garners moved into the home. They soon began to notice various problems such as mildew, musty odors, dampness, and sagging and buckling walls, floors, cabinets, and countertops. The Garners immediately informed Rose and Southern Homes of the situation, who made numerous attempts to repair the home without success.

On February 20, 1997, the Garners filed suit against Rose and Southern Homes. Rose filed an answer on May 27, 1997. However, an answer was never filed on behalf of Southern Homes. As a result, the Garners filed a Motion for Preliminary Default on August 15, 1997. On September 10, 1997, the plaintiffs obtained a default judgment against Southern Homes awarding the Garners the return of the purchase price, incidental and general damages in the amount of $30,742.00, and attorney’s fees in the amount of $10,000.00.

On October 27, 1997, Southern Homes filed a Petition to Annul the September 10, 1997 Default Judgment. It also filed a Petition and Order for Appeal, which was granted by the trial court on November 13, 1997. Thereafter, all matters between the Garners and Southern Home were settled, and the Garners dismissed all claims against Southern Homes. Subsequently, [298]*298upon plaintiffs’ motion, the default judgment was set aside and rendered null by judgment dated August 19,1998.

On that same date, the State Fire Marshall rendered a report outlining deficiencies in the Garners’ home that required plaintiffs to obtain leave of court to amend their Petition. On September 21, 1998, Rose answered plaintiffs’ supplemental petition and filed a Third Party Demand against Lloyd Cernich.

13After a trial held on December 8-9, 1998, the trial court rescinded the sale. It entered judgment in favor of the Garners and against Rose in the amount of $141,892.55, the total sale price of the mobile home, including the cost of credit, cash down payment, taxes, and recordation fees, subject to a credit in favor of Rose for the pay-out of the unpaid principal and interest due and paid for the cancellation of the mortgage and security interest on the mobile home. The trial court also awarded the plaintiffs $14,333.50 for expenses associated with additions to the mobile home, insurance, and sewerage plant, and an additional $15,000.00 for inconvenience, mental suffering, and loss of enjoyment, together with legal interest, costs, and reasonable attorney’s fees. The claim against Cernich was dismissed. Rose subsequently filed this appeal.

DISCUSSION

In its first assignment of error, Rose argues that the trial court erred by not allowing Rose a credit for the damages awarded the plaintiffs in the previous default judgment entered against Southern Homes. Rose contends that the default judgment awarded the plaintiffs all of the damages available to them under either the redhibition articles or the New Home Warranty Act.

The default judgment rendered on September 10, 1997 was set aside by order of the court dated August 19, 1998. The judgment never reached finality; as a result of a compromise reached between the Garners and Southern Homes, it was declared null during the pendency as a properly perfected appeal. As such, the judgment has no force or legal effect. Absent a judgment assigning fault for the defective mobile home to a party other than Rose, Rose is not entitled to an offset or credit. This assignment of error is without merit.

|4In its second assignment of error, Rose argues that the trial court committed manifest error by applying the redhibition provisions of the Louisiana Civil Code against Rose, rather than applying the provisions of the New Home Warranty Act, LSA-R.S. 9:3141, et seq.

Under the New Home Warranty Act, a builder warrants a new home from certain defects. A builder is defined as “any person, corporation, partnership, .... or other entity which constructs a home, or addition thereto....” LSA-R.S. 9:3143(1). The New Home Warranty Act provides the exclusive remedies, warranties and prescriptive periods as between builder and owner relative to home construction, and no other provisions of law relative to warranties and redhibitory vices shall apply. LSA-R.S. 9:3150.

A sale is a contract whereby a person transfers ownership of a thing to another for a price in money. La. Civ.Code art. 2439. A construction contract is an agreement to undertake a building or a work for a certain stipulated price. La. Civ.Code art. 2756. Where a contract involves both obligations to do and to give, generally one of the obligations must be designated as fundamental and the rules thereunder will control. Conmaco, Inc. v. Southern Ocean Corporation, 581 So.2d 365, 369 (La.App. 4 Cir.1991), citing 7 S. Litvinoff, La. Civil Law Treatise: Obligations Book 2, Section 158 at page 291. “The mere fact that an obligor may be involved in the installation and delivery of [299]*299the equipment will not change the characterization of the obligation from that of a sales contract, and therefore the rules governing sale will control.” Id. at 370.

The document executed by Linda and Michael Garner and Travis Knight of Rose is styled as a “Plain Language Purchase Agreement.” The accompanying Retail Installment Contract and Security Agreement references the Garners as | fi“Buyers” and Rose as “Seller.” A review of the evidence regarding the transaction between the Garners and Rose reveals that Rose did not agree to build a mobile home; it agreed to sell a mobile home. Southern Homes manufactured the home; the installation of the two pre-fabrieated halves of the mobile home by Rose constituted installation of the item sold. As such, the contract was a contract of sale, and Rose should be classified as a seller, not a builder. Accordingly, the laws of sale and, therefore, redhibition should be applied, rather than the provisions of the New Home Warranty Act. This assignment of error lacks merit.

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Bluebook (online)
798 So. 2d 295, 2000 La.App. 4 Cir. 2226, 2001 La. App. LEXIS 2166, 2001 WL 1203227, Counsel Stack Legal Research, https://law.counselstack.com/opinion/garner-v-louisiana-housing-lactapp-2001.