Ticheli v. Silmon

304 So. 2d 792
CourtLouisiana Court of Appeal
DecidedDecember 10, 1974
Docket12478
StatusPublished
Cited by18 cases

This text of 304 So. 2d 792 (Ticheli v. Silmon) 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
Ticheli v. Silmon, 304 So. 2d 792 (La. Ct. App. 1974).

Opinion

304 So.2d 792 (1974)

Leo C. TICHELI, Sr., Plaintiff-Appellee,
v.
Walter T. SILMON et al., Defendants-Appellants.

No. 12478.

Court of Appeal of Louisiana, Second Circuit.

December 10, 1974.

*794 Jones, Blackwell, Chambliss, Hobbs & Henry by Sam O. Henry, III, West Monroe, for defendant-appellant, Walter T. Silmon.

Watson, Murchison, Crews & Arthur by William P. Crews, Jr., Natchitoches, for defendant-appellant, Sherwood Homes, Inc.

Kostelka & Blackwell by Marshall Q. Blackwell, Monroe, for plaintiff-appellee.

Before AYRES, PRICE and HALL, JJ.

HALL, Judge.

In this redhibitory action the district court rendered judgment in favor of the purchaser of a mobile home against the manufacturer and the seller, in solido, rescinding the sale and for the amount of the purchase price plus sales tax, fees, interest and finance charges subject to a credit for unearned interest and for use of the mobile home by plaintiff. Judgment was also rendered in favor of the seller on its third party demand against the manufacturer. The manufacturer perfected a devolutive appeal. We affirm the judgment of the district court.

The first specification of error made by appellant is that the district court erred in overruling its peremptory exceptions of res judicata and prescription.

Plaintiff, Leo C. Ticheli, Sr., filed suit in Ouachita Parish on May 20, 1971, against Walter T. Silmon d/b/a Silmon Mobile Homes and Sherwood Homes, Inc. Plaintiff alleged he purchased a new house trailer on May 22, 1970 and that the trailer contained vices and defects rendering it useless. He prayed for rescission of the sale and return of the purchase price and, alternatively, for a reduction in the purchase price. Defendant, Sherwood Homes, Inc., filed a declinatory exception of improper venue alleging it is a Louisiana corporation with its registered office in Natchitoches Parish, which is where the suit should have been brought under LSA-C.C.P. Art. 42(2). The exception was sustained in a written opinion of the district court dated February 12, 1973, in which opinion the court noted that the petition did not allege that the two defendants are either joint or solidary obligors or that there was any connexity between the defendants or which if either of the defendants manufactured or sold the trailer. On May 17, 1973, plaintiff filed an amended and supplemental petition alleging the mobile home was manufactured by Sherwood Homes, Inc. and sold to plaintiff by Silmon and alleging additional damages in connection with the transaction. Plaintiff prayed for judgment against the defendants in solido. Thereafter defendant, Sherwood Homes, Inc., filed a peremptory exception of res judicata pleading the ruling on the exception of improper venue as a bar to the amended and supplemental petition. Defendant also filed a peremptory *795 exception of prescription contending defendant's action to rescind the sale made on May 22, 1970 was prescribed since the amended and supplemental petition was not filed or served on defendant until more than one year after the date of the sale.

The district court correctly overruled the exception of res judicata, holding that the ruling on the exception of improper venue did not dispose of the action on its merits and plaintiff was entitled to remove the objections pleaded in the exception by amendment to his petition under LSA-C.C.P. Art. 932, which plaintiff accomplished with leave of court.

The peremptory exception of prescription was also properly overruled. LSA-R.S. 9:5801 provides that the filing of a suit in a court of competent jurisdiction shall interrupt all prescriptions affecting the cause of action therein sued upon against all defendants. Although the petition as originally drawn did not allege sufficient facts to show proper venue in Ouachita Parish, the district court for that parish was a court of competent jurisdiction and was, in fact, ultimately determined to be a court of proper venue. Prescription was interrupted as of the date of filing of the original petition as against both defendants. In any event, the filing of suit against one solidary obligor interrupts the running of prescription as to another co-obligor not originally sued. LSA-C.C. Art. 2097. The manufacturer and the selling dealer are solidarily liable for return of the purchase price where a sale is rescinded for redhibitory defects. Media Production Consultants, Inc. v. Mercedes-Benz of North America, Inc., 262 La. 80, 262 So.2d 377 (1972). The amendment increasing the amount of damages claimed does not set forth a new cause of action and relates back to the date of the filing of the original petition and such additional claim is not prescribed. Stahl v. Sazer, 141 So.2d 441 (La.App. 4th Cir. 1962).

Turning to the merits, the evidence discloses plaintiff purchased the new mobile home, manufactured by Sherwood Homes, Inc., from Silmon, a mobile home dealer, for use as a home by plaintiff and his family. Silmon delivered the mobile home to plaintiff's property, set the home up on blocks, leveled and plumbed it. Plaintiff had the utilities connected to the mobile home which involved exterior connections. At a later time he had an air conditioning unit installed which also involved exterior connections. There is conflicting evidence as to whether plaintiff at a later date removed the wheels from the trailer which may or may not have affected the level of the mobile home.

The evidence discloses, and the trial court so found, that defects commenced to evidence themselves as soon as the utilities were connected to the trailer and plaintiff began using it. The manufacturer made numerous efforts at repairs and some of the defects were corrected and some were not. Most of the defects complained of at the time of trial had manifested themselves within three to five months after the mobile home was purchased. The trial court found the following vices and defects to exist on the date of trial despite repair efforts:

"A. The front outside door will not remain shut and cannot be locked;
B. The back outside door will not remain shut and cannot be locked;
C. Gaps exist between the door frame and door in both the front and back outside doors;
D. In several windows throughout the trailer, gaps are present even when the windows are closed;
E. The front bathtub leaks and the carpet and the floor around the tub have become rotten. Stains have developed on the paneling in the front bedroom and living room wall adjacent to the tub;
F. The front bathroom door has completely fallen off;
*796 G. The partition separating the kitchen-dining area from the living room is insecure and moves to and fro;
H. The sliding door to the front bathtub remains insecure and falls out of place from time to time;
I. The floor vents remain insecure;
J. The kitchen sink leaks periodically;
K. The woodwork around the back door is falling off, and some paneling in the hall near the back door has warped;
L. Insulation is falling from the trailer in an area under the back bedroom; and
M. The heating and air conditioning ducts under the mobile home are allegedly defective and will not permit the proper flow of air."

The trial court reached the following conclusions, with which we agree:

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Bluebook (online)
304 So. 2d 792, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ticheli-v-silmon-lactapp-1974.