Simmons v. Southern Energy Homes, Inc.

783 So. 2d 636, 0 La.App. 3 Cir. 1449, 2001 La. App. LEXIS 733, 2001 WL 323859
CourtLouisiana Court of Appeal
DecidedApril 4, 2001
DocketNo. 00-1449
StatusPublished
Cited by1 cases

This text of 783 So. 2d 636 (Simmons v. Southern Energy Homes, Inc.) 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.

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Simmons v. Southern Energy Homes, Inc., 783 So. 2d 636, 0 La.App. 3 Cir. 1449, 2001 La. App. LEXIS 733, 2001 WL 323859 (La. Ct. App. 2001).

Opinion

JjDOUCET, Chief Judge.

Plaintiffs, Alton C. and Loretta P. Simmons, appeal a judgment of the trial court, signed May 30, 2000, dismissing their claims against Defendant, Southern Energy Homes, Inc. We reverse the judgment dismissing Plaintiffs’ suit against Southern Energy Homes, Inc., and remand the case for further proceedings.

FACTS

Plaintiffs purchased a mobile home from Kite Brothers, Inc., in DeRidder, Louisiana, on December 9, 1996. The mobile home was manufactured by Southern Energy Homes, Inc. of Texas (Southern). The home was delivered on December 15, 1996, and Plaintiffs occupied the home. Shortly thereafter, they began to notice numerous defects in the mobile home and sought legal assistance.

On October 28, 1997, Plaintiffs’ counsel sent a letter to Southern demanding rescission of the sale under the redhi-bition articles in the Louisiana Civil Code. Thereafter, on December 10, 1997, Plaintiffs instituted suit against Southern for “BREACH OF CONTRACT AND DAMAGES.” Southern answered and filed exceptions of prematurity and no right and no cause of action. Southern’s exception of prematurity was based upon Plaintiffs’ non-compliance with the provisions of the Louisiana New Home Warranty Act (La. R.S. 9:3141-3150).

The proceedings in the trial court were amply described by the trial judge in his reasons for judgment as follows:

This matter first came before the Court on January 21, 1999, on hearing of exceptions of prematurity and no right and no cause of action. These exceptions were filed by defendant, Southern Energy Homes. On January 20, 1999 the Court allowed plaintiffs to file a first amended and supplemental petition for breach of contract and damages, this being filed one day before the hearing on January 21, 1999. The pleadings filed January 20, 1999 added Kite Brothers, Inc. as a defendant and | ¡.restated the cause of action pertaining to defendant, Southern Energy Homes.
On January 21, 2000 after oral arguments, the Court maintained the exception of prematurity and ordered plaintiffs’ suit dismissed for failure to follow the requirements of the New Home Warranty Act La. R.S. 9:3141 pertaining to notice and allowing defendant the opportunity to make repairs.
On February 2, 1999 Kite Brothers, Inc. filed exceptions to service of process and an exception of prescription. For all practical purposes plaintiffs concede that plaintiffs’ claim against Kite Brothers, Inc. had prescribed at the time of filing the first amended and supplemental petition on January 20, 2000, and therefore Kite Brothers, Inc.[’s] exception of prescription will be granted. The exception of service of process is therefore moot and of no consequence [638]*638and the Court will not address that matter.
Simultaneous with the exception filed by Kite Brothers, Inc., Southern Energy Homes filed a second set of exceptions. The Court finds that the exceptions filed by Southern Energy Homes on February 2, 2000 were unnecessary since the Court had previously granted the exception of prematurity and ordered the suit dismissed. Therefore there was at the time the exceptions were filed on February 2, 2000 no suit then viable which could be the subject of exceptions. It does seem however that no written order of dismissal was ever submitted by defense counsel, and therefore there was no written order signed or filed in the record. The minutes of Court of January 21, 2000 clearly however reflect the dismissal of plaintiffs’ suit. This dismissal was subsequent to the filing of plaintiffs’ first amended and supplemental petition, and therefore effectively dismissed that part of the first amended and supplemental petition insofar as it relates to Southern Energy Homes as well as plaintiffs’ original petition.
The Court will sign an order of dismissal when submitted in accordance with reasons stated on January 21, 1999, as to the plaintiffs’ suit against Southern Energy Homes thereby maintaining the exception of prematurity. The Court will sign a judgment maintaining Kite Brothers, Inc.[’s] exception of prescription when submitted in accordance with the reasons stated herein dismissing plaintiffs’ suit as it relates to Kite Brothers, Inc.
Done and signed at DeRidder, Beauregard Parish, Louisiana, on this the 18th day of May, 2000.

^Subsequently, the trial court, signed two separate judgments, one on May 30, 2000, dismissing Plaintiffs’ claims against Southern Energy Homes, Inc. based on prematurity and the second on June 1, 2000, dismissing Plaintiffs’ claims against Kite Brothers, Inc. Plaintiffs do not appeal the dismissal of Kite Brothers, hence we will limit our discussion as to the district court’s dismissal of their action against Southern.

LAW AND DISCUSSION

Plaintiffs’ original petition, filed on December 10,1997, sounds in redhibition and, in the alternative, in quanti minoris. Southern filed a document entitled “EXCEPTIONS” on June 29, 1998. Their exception of prematurity was based upon Plaintiffs’ non-compliance with the provisions of the Louisiana New Home Warranty Act. The hearing on Southern’s exceptions did not take place until January 21, 1999. The day before the hearing, by leave of court, Plaintiffs’ were allowed to file their “FIRST AMENDED AND SUPPLEMENTAL PETITION FOR BREACH OF CONTRACT AND DAMAGES.” The amended petition added Kite Brothers as a defendant and added a claim against Southern under the Louisiana New Home Warranty Act. Paragraph fifteen of Plaintiffs’ petition states that on November 17, 1998, Plaintiffs gave Southern “written notice, via certified mail, advising Southern ... of all defects and demanding that Southern ... comply with the provisions of the Louisiana New Home Warranty Act.” On appeal Plaintiffs argue that their letter of November 17, 1998, and their amended petition make Southern’s exception of prematurity moot. Southern argues that, under well settled law, an exception of prematurity is determined by the facts existing at the time the petition is filed and thus, their exception is well founded.

|4We find Southern’s reliance on the Louisiana New Home Warranty Act misplaced. Recently, in Dalme v. Blockers [639]*639Manufactured Homes, Inc., 00-00244, pp. 2-7 (La.App. 3 Cir. 1/25/01); 779 So.2d 1014, 1017-20, this court, sitting en banc, found the Louisiana New Home Warranty Act not applicable to mobile homes stating the following:
This court has had several opportunities to consider the applicability and scope of the New Home Warranty Act (NHWA), found at La.R.S. 9:3141 et seq, with respect to mobile homes.
Our court has concluded that the NHWA applies to mobile homes. See Sonnier v. Bayou State Mobile Homes, Inc. 96-1458 (La.App. 3 Cir. 4/2/97); 692 So.2d 698, writ denied, 97-1575 (La.10/3/97); 701 So.2d 201. We are now convinced, nevertheless, that the Legislature did not intend such a result. Where a statute is ambiguous or susceptible of two reasonable interpretations, statutory interpretation is necessary. In re Louisiana Health Serv. and Indem. Co. 98-3034 (La.10/19/99); 749 So.2d 610. The meaning of ambiguous words must be sought by examining the context in which they occur and the text of the law as a whole. See West Monroe Police Local 135 v. Norris, 31,183 (La.App. 2 Cir. 10/28/98); 720 So.2d 434, writ denied, 99-0035 (La.2/12/99); 738 So.2d 582.

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783 So. 2d 636, 0 La.App. 3 Cir. 1449, 2001 La. App. LEXIS 733, 2001 WL 323859, Counsel Stack Legal Research, https://law.counselstack.com/opinion/simmons-v-southern-energy-homes-inc-lactapp-2001.