Thomson v. Cobb

570 So. 2d 145, 1990 WL 174184
CourtLouisiana Court of Appeal
DecidedNovember 7, 1990
Docket89-480
StatusPublished
Cited by5 cases

This text of 570 So. 2d 145 (Thomson v. Cobb) 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
Thomson v. Cobb, 570 So. 2d 145, 1990 WL 174184 (La. Ct. App. 1990).

Opinion

570 So.2d 145 (1990)

George Bell THOMSON, Jr., Steven Schull Thomson and Timothy H. Supple, Plaintiffs-Appellants,
v.
Bobby Gene COBB and Jean Derveloy Cobb, Defendants-Appellees,
Wayne Hebert and Bonnie Vincent Hebert, Third Party Defendants.

No. 89-480.

Court of Appeal of Louisiana, Third Circuit.

November 7, 1990.
Rehearing Denied December 14, 1990.
Writ Denied January 4, 1991.

*146 Mouton & Alexander, John A. Mouton, III, Lafayette, for plaintiffs-appellants.

Bean & Parker, Ernest L. Parker, Lafayette and Theall & Fontana, Anthony J. Fontana, Jr., Abbeville, for defendants-appellees.

Before DOMENGEAUX, C.J., and STOKER and YELVERTON, JJ.

DOMENGEAUX, Chief Judge.

In this redhibition suit, the plaintiffs seek to rescind the sale of immovable property, contending an improperly placed sewer line prohibits them from developing the property as intended. The trial judge dismissed *147 the suit, after finding the location of the sewer line was discoverable upon simple inspection. We reverse.

FACTS

Bobby and Jean Cobb and their business partners, Wayne and Bonnie Hebert, developed Country Lane Townhouses in Lafayette as a multi-family residential subdivision. In March of 1982, Bobby Cobb approached his friend George Thomson about purchasing Lot 13, the one remaining unimproved parcel in the subdivision. Thomson, a real estate agent familiar with the subdivision, considered the lot a good investment. He convinced his brother, Steven Schull Thomson, and his friend, Timothy Supple, to purchase the property with him, with the intention of one day placing a fourplex on it, in conformity with the other lots in the subdivision. On April 22, 1982, the three plaintiffs purchased Lot 13 from the Cobbs for $18,000.00.

Prior to the sale, Bobby Cobb provided Thomson with a plat of Lot 13 prepared by surveyor Gerald Reaux and which was filed in the public records. Lot 13, the smallest in the subdivision, fronts 87.56' on Country Lane Road and is 115' deep. Directly behind the lot is the private sewerage treatment plant which services the subdivision.

The plat prepared by Reaux identified a 5' utility easement along the frontage of Lot 13 and a 20' drainage easement running the depth of the property at its southwest boundary. The plat also showed another 5' utility easement and a 10' access easement, both located within the drainage easement.

After the sale, Thomson did not visit the property again until 1987, when he observed tire tracks along the center of the lot leading to the sewerage treatment plant. Believing plant employees were trespassing on his property, Thomson hired a surveyor, Greg Spikes, to prepare a second plat of the lot. The Spikes plat revealed the underground sewer line which services all residences in the subdivision was not located within the 5' utility easement along the lot's southwest boundary, but in fact traversed Lot 13 approximately at its center.

Thomson then hired Ludrine Leger, a plumbing contractor, to inspect the sewer lines. Leger noted the only external evidence of the sewer's location was a manhole cover located within the 5' utility easement along the lot's frontage. According to Leger, the sewer line runs in an east-west direction within the easement until it reaches the manhole. At that point, the line makes a 90 turn northward and proceeds to the treatment plant behind the lot.

The sewer line is composed of PVC, SDR 35 push-on joint pipe, a thin-walled pipe designed for outside use. Mr. Joseph Matte, a plumbing inspector for the Acadiana Metropolitan Authority, explained the Metro Code prohibits the construction of a building over this type of pipe. He further explained that sewer pipes servicing a large number of residences are generally not laid under buildings.

Thomson attempted to resolve the matter with the Cobbs, but when negotiations broke down, the three plaintiffs filed this suit. The Cobbs third-partied the Heberts, but on the day of trial, the Cobbs and the Heberts entered a stipulation whereby they agreed to share equal responsibility for any recovery in favor of the plaintiffs.

PRESCRIPTION

The Cobbs filed an exception of prescription which the trial court apparently deferred until after trial on the merits. In taking the matter under advisement, the district judge indicated prescription was one question he would consider; however, he did not address that issue in his written reasons for judgment. We must presume the exception was denied.

A redhibitory action must be brought within one year of the date of the sale, unless the seller had knowledge of the defect and neglected to declare it to the purchaser. La.C.C. art. 2534. If the seller fails to inform the purchaser of a known, latent defect, the purchaser has one year from the date he discovers the vice to institute his suit in redhibition. La.C.C. art. *148 2546. A manufacturer is presumed to know the defects in the things made by him and is therefore considered a bad faith seller. Rey v. Cuccia, 298 So.2d 840 (La. 1974).

The plaintiffs contend the Cobbs, as the developers of Country Lane Townhouses, must be considered manufacturers for purposes of this suit. We agree, finding the facts of this case fit squarely within the rulings of Amin v. Head, 419 So.2d 529 (La.App. 2d Cir.1982), writ denied, 423 So.2d 1151 (La.1982), and Hostetler v. W. Gray & Company, Inc., 523 So.2d 1359 (La.App. 2d Cir.1988), writs denied, 531 So.2d 470, 471 (La.1988).

In Amin, the subdivider who installed a defective underground drainage system was considered a manufacturer for redhibition purposes, as was the developer in Hostetler, who provided the purchasers with a plat which incorrectly identified a flowage easement.

As the developers of Country Lane Townhouses, the Cobbs were responsible for the installation of its sewerage system. Bobby Cobb provided the plaintiffs with a plat of Lot 13 which purportedly identified the easements where that system should have been located. Under Amin and Hostetler, we find the Cobbs are properly charged with the constructive knowledge of the sewer line's incorrect location.

This case does not extend Amin so that every developer is to be considered a manufacturer in redhibition suits. As we recognized in Cook v. DeSoto, 552 So.2d 69 (La. App. 3d Cir.1989), writ denied, 556 So.2d 1264 (La.1990), that determination is a factual one, dependent upon the activities of the developer in each case.

As manufacturers, the Cobbs are subject to the extended prescriptive period of article 2546 and are liable for additional damages and attorney's fees under La.C.C. art. 2545. Because the plaintiffs filed suit within a year of their discovery of the sewer line's actual location, their claim has not prescribed.

APPARENT OR LATENT DEFECT?

Apparent defects, or those discoverable by simple inspection, are not considered redhibitory vices. La.C.C. art. 2521.

The term "simple inspection" as used in this code article connotes more than a mere casual observation by the buyer; it requires an examination of the article with a view of ascertaining its soundness. Pursell v. Kelly, 244 La. 323, 152 So.2d 36 (1963). However, the buyer is not required to examine the inner or hidden parts of the object for the purpose of finding latent defects. Pursell; Estopinal v. Bourshie, 420 So.2d 749 (La.App. 4th Cir.1982).

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Bluebook (online)
570 So. 2d 145, 1990 WL 174184, Counsel Stack Legal Research, https://law.counselstack.com/opinion/thomson-v-cobb-lactapp-1990.