Wimberly v. Blue

11 So. 3d 560, 8 La.App. 3 Cir. 1535, 2009 La. App. LEXIS 675, 2009 WL 1212890
CourtLouisiana Court of Appeal
DecidedMay 6, 2009
DocketCA 08-1535
StatusPublished
Cited by4 cases

This text of 11 So. 3d 560 (Wimberly v. Blue) 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
Wimberly v. Blue, 11 So. 3d 560, 8 La.App. 3 Cir. 1535, 2009 La. App. LEXIS 675, 2009 WL 1212890 (La. Ct. App. 2009).

Opinion

GREMILLION, Judge.

|;An exception of prescription maintained in favor of defendants/appellees, James Orville Blue and Earline Bourque Blue, dismissing the demands of plaintiffs/appellants, Eric Ryan Wimberly and Stameka Nakia Wimberly, is the subject of the present appeal. For the reasons that follow, we affirm.

FACTS

The Blues purchased Lot 2 of the Fleur De Lis Subdivision in Lafayette Parish in June 2000. They never undertook any construction on the lot. In July 2004, the Blues sold the lot to the Wimberlys. The Wimberlys purchased the lot to build a home. They did not immediately begin construction. At the time of sale, the Wimberlys did not have a survey done of the property. They did not consult any maps or plats. They were not concerned about whether the property was located in a flood zone, as there was no home on the property and flood insurance was not required at that point. The Blues were not aware of the flood zone classification of the property.

In February or March 2007, the Wim-berlys began the construction process. They hired an architect to design their home, obtained a bid for the framing of the home, and hired a surveyor, but only to establish the four corners of the foundation. As they were acting as their own general contractor in the construction, the Wimberlys applied for a building permit. They were informed, for the first time, that the lot fell within a floodway on the Flood Insurance Rate Map and a permit could not be issued. The subject suit followed.

The Wimberlys sued the Blues in redhi-bition. The Blues answered and separately filed an exception of prescription. At the hearing, counsel for the |2Wimberlys conceded that the Blues were good faith sellers. However, the Wimberlys argued that the applicable prescriptive period was one year from the date they discovered that the property could not be built upon by virtue of the designation of the land as a floodway.

The principal dispute was, and is on appeal, whether the lot was properly designated as residential or commercial property and subject to a prescriptive period of one year from the date of delivery rather than one year from the date of discovery. The trial court found that Lot 2 was residential immovable property subject to a liberative prescriptive period of one year from the date of delivery, and that the doctrine of contra non valentem was not applicable. The Wimberlys’ demands against the Blues were dismissed with prejudice. The Wimberlys appeal the findings that the lot was residential immovable property and that contra non va-lentem did not operate to interrupt prescription. 1

*563 ANALYSIS

The suit filed by the Wimberlys sounds in redhibition, and seeks rescission of the sale, damages and attorney fees. The Wimberlys specifically alleged that the Blues knew or should have known of the latent defect the floodway designation represented.

1 .¡The Wimberlys argue that under the doctrine of contra non valentem, prescription did not begin to run until the discovered that the property could not be built upon. Prescription in redhibitory actions is governed by La.Civ.Code art. 2534, which reads:

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.
(2) However, when the defect is of residential or commercial immovable property, an action for redhibition against a seller who did not know of the existence of the defect prescribes in one year from the day delivery of the property was made to the buyer.
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.

Article 2534 determines the prescriptive date based upon two criteria: 1) whether the seller knew of the defect, and 2) whether the sale involved residential or commercial property. A seller who knows of a latent defect in the thing sold and fails to disclose it, known as a “bad faith seller,” can be sued at any point up to one year from the date the buyer discovers the defect, regardless of the nature of the property sold. La.Civ.Code art. 2534(B). A seller who did not know of the defect in the thing sold can be sued within the earlier of four years from date of delivery or one year from date of discovery. La.Civ. Code art. 2534(A)(1). However, a seller of residential or commercial immovable property who did not know of the defect can only be sued within one year from the day the property was delivered to the buyer. La.Civ.Code art. 2534(A)(2). The date of discovery plays no part at all in determining the ^prescriptive period against such a seller.

The language of Afiele 2534 challenges an interpretation extending the discovery rule to cases involving the sale by a good faith seller of residential or commercial property. The article begins with the basic premise that when the seller does not know of the defect in the thing, the buyer’s redhibitory action prescribes four years from the date of delivery or one year from his discovery of the defect, whichever comes first. However, when the thing sold is residential or commercial immovable property, the buyer’s redhibitory action prescribes one year from the date of delivery. Paragraph (B) establishes the prescriptive period for bad faith sellers at one *564 year from the date of discovery. The legislature specifically provided for the date of discovery to govern — to one degree or another — the tolling of prescription in every instance except when the thing sold is residential or commercial property.

In interpreting a statute, the supreme court has stated the following principles:

It is presumed that every word, sentence or provision in the statute was intended to serve some useful purpose, that some effect is to be given to each such provision, and that no unnecessaiy words or provisions were used. Bunch v. Town of St. Francisville, 446 So.2d 1357, 1360 (La.App. 1 Cir.1984). Conversely, it will not be presumed that the Legislature inserted idle, meaningless or superfluous language in the statute or that it intended for any part or provision of the statute to be meaningless, redundant or useless. Id.

ABL Management, Inc. v. Board of Sup’rs of Southern Univ., 00-0798, p.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Hunt v. Louisiana Municipal Risk Management Agency
176 So. 3d 1110 (Louisiana Court of Appeal, 2015)
MGD Partners, LLC v. 5-Z Investments, Inc.
145 So. 3d 1053 (Louisiana Court of Appeal, 2014)
Glisan v. Eaton
30 So. 3d 1150 (Louisiana Court of Appeal, 2010)
CHL Enterprises, LLC v. State, Department of Revenue
23 So. 3d 1000 (Louisiana Court of Appeal, 2009)

Cite This Page — Counsel Stack

Bluebook (online)
11 So. 3d 560, 8 La.App. 3 Cir. 1535, 2009 La. App. LEXIS 675, 2009 WL 1212890, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wimberly-v-blue-lactapp-2009.