Travis Lee Stevens v. Darren Keith Bruce

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

04-133

TRAVIS LEE STEVENS

VERSUS

DARREN KEITH BRUCE, ET AL.

**********
APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF VERMILION, NO. 02-78596
HONORABLE MARILYN C. CASTLE, DISTRICT JUDGE
**********

GLENN B. GREMILLION
JUDGE

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Court composed of John D. Saunders, Oswald A. Decuir, and Glenn B. Gremillion,
Judges.

REVERSED AND REMANDED.

R. Chadwick Edwards, Jr.
Edwards & Edwards
P. O. Box 217
Abbeville, LA 70511-0217
(337) 893-2884
Counsel for Plaintiff/Appellant
Travis Lee Stevens
Kim Stevens

Charley Hutchens
1704 W. University Avenue
Lafayette, LA 70506
(337) 237-4102
Counsel for Defendants/Appellees
Darren Keith Bruce
Tina Elizabeth Bruce

Charles R. Minyard
P. O. Box 3642
Lafayette, LA 70502
(337) 266-2300
Counsel for Defendants/Appellees
Minos Breaux
Janet Breaux

Vincent J. Saitta
Colomb & Saitta
428 Jefferson Street
Lafayette, LA 70501
(337) 231-5250
Counsel for Defendants/Appellees
Vesta Breaux Pellerin
Judy Breaux Touchet
Elaine Breaux Broussard
Darrell Breaux

GREMILLION, Judge.

The plaintiffs, Travis and Kim Stevens, appeal the judgment of the trial

court sustaining an exception of prescription in favor of the defendants, Darren and

Tina Bruce, and an exception of no right of action in favor of the defendants, Vesta

Breaux Pellerin, Judy Breaux Touchet, Cynthia Breaux McAdams, Elaine Breaux

Broussard, and Darrell Breaux (the Vesta Breaux defendants). For the following

reasons, we reverse and remand.

FACTS

The Stevens purchased their tract of property from the Bruces on October

25, 2000. Prior to that, the Bruces had purchased two tracts comprising the subject

tract from the Vesta Breaux defendants and Minus and Janet Breaux (the Minus

Breaux defendants), on June 25, 1998 and June 30, 1998, respectively. On October

21, 2001, the Stevens began excavating the tract in order to construct a pond and raise

the elevation of the surrounding property prior to constructing a home. In doing so,

they discovered several buried drums of hazardous waste, which had previously been

placed there by John Broussard of Broussard Chemical, Inc., a previous co-owner

and/or lessee of the property. The Stevens notified the Louisiana Department of

Environmental Quality (DEQ), which later discovered other caches of buried

hazardous waste. Due to the contamination caused by the hazardous waste, the

Stevens have been prevented from utilizing their property.

On September 9, 2002, the Stevens filed a Petition in Redhibition against

the Bruces and the Vesta Breaux defendants alleging that the presence of the

hazardous waste on their property was a redhibitory defect pursuant to La.Civ.Code

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art. 2520. They further alleged that the Bruces and the Vesta Breaux defendants knew

that the Breaux property had been the subject of a DEQ investigation and that they

failed to register the property with DEQ as required by La.R.S. 30:2039. Finally, the

Stevens stated that had they known of Broussard Chemical’s use of the property or

that a DEQ clean-up site was located adjacent to this tract, they would not have

purchased the property.

In response, the Vesta Breaux defendants filed a peremptory exception

of prescription alleging that the Stevens’ claim of redhibition had prescribed. In the

alternative, they urged a peremptory exception of no right of action. The Bruces

answered the petition and filed a cross claim against their ancestors-in-title to the first

tract, the Vesta Breaux defendants, and a third party demand against their ancestors-

in-title to the second tract, the Minus Breaux defendants. In response, the Minus

Breaux defendants filed peremptory exceptions of prescription against the principal

and third party demands and a peremptory exception of no cause of action against the

Bruces. Thereafter, the Bruces filed a peremptory exception of no cause of action

against the Stevens’ claims.

Following a hearing on the exceptions, the trial court sustained the

Bruces’ peremptory exception of prescription and the Vesta Breaux defendants’

peremptory exception of no right of action. The Stevens sought writs based on the

trial court’s judgment, however, this court denied their writ application as being

premature since they had an adequate remedy through appeal. Thereafter, the Stevens

moved for a final judgment in this matter; an order designating the rulings as final and

appealable was rendered by the trial court on November 13, 2003. This appeal by the

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Stevens followed.

ISSUES

On appeal, the Stevens argue that the trial court erred in sustaining the

peremptory exceptions of prescription and no right of action.

REDHIBITION

An action in redhibition is found in La.Civ.Code art. 2520. A redhibitory

defect is one which “renders the thing useless, or its use so inconvenient that it must

be presumed that a buyer would not have bought the thing had he known of the defect.

The existence of such a defect gives a buyer the right to obtain rescission of the sale.”

La.Civ.Code art. 2520. A redhibitory action prescribes against a seller, who was

unaware of the defect, four years from the date of delivery of the thing to the buyer

or one year from the date of discovery of the defect by the buyer, whichever occurs

first. La.Civ.Code art. 2543(A)(1). Louisiana Civil Code Article 2534(A)(2) provides

that, “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.”

In reviewing prescriptive statutes:

Prescriptive statutes are strictly construed against prescription and
in favor of the claim sought to be extinguished by it. Bouterie v. Crane,
616 So.2d 657 (La.1983); Bustamento v. Tucker, 607 So.2d 532
(La.1992). The burden of proof on the prescription issue lies with the
party asserting it; however, where the petition shows on its face that the
claim has prescribed, the burden shifts to the plaintiff to prove that the
prescriptive period has been interrupted or suspended.

Amoco Prod. Co. v. Texaco, Inc., 02-240, pp. 7-8 (La.App. 3 Cir. 1/29/03), 838 So.2d

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821, 829, writ denied, 03-1102, 03-1104 (La. 6/6/03), 845 So.2d 1096.

The Stevens first argue that the trial court erred in transferring the burden

of proof from the Bruces to them to prove that their cause of action had not prescribed.

The petition reveals that the Stevens purchased their tract of land from

the Bruces on October 25, 2000. On October 10, 2001, they discovered the buried

hazardous waste on their property and, thereafter, filed their redhibitory action against

the Bruces on September 9, 2002. A review of the petition on its face reveals that the

petition has prescribed. In the petition, the Stevens stated that they were utilizing the

property for a homesite, thus, on its face, La.Civ.Code art. 2534(A)(2) would apply,

as it appears that residential immovable property was involved. Since the petition has

prescribed on its face, the burden of proof shifted to the Stevens to prove that the

applicable prescriptive period was interrupted or suspended. We find no error in the

trial court’s requirement that the Stevens rebut the presumption of prescription.

The Stevens next argue that the trial court erred in holding that

“residential” and “commercial” immovable property, as used in La.Civ.Code art.

2534(A)(2), applies to all sales of immovable property.

In sustaining the exception of prescription in favor of the Bruces, the

judgment of the trial court states that “the legislative intent in creating a one (1) year

prescriptive period for actions in redhibition relating to sale of residential and

commercial immovable property under Civil Code Article 2534A.(2), applies to all

sales of immovable property.” We disagree.

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The rules pertaining to statutory interpretation were recently laid out by

the supreme court in Palmer v. Louisiana State Board of Elementary and Secondary

Education, 02-2043, pp. 5-6 (La. 4/9/03), 842 So.2d 363, 367-68:

Principles of judicial interpretation of statutes are designed to
ascertain and enforce the intent of the legislature in enacting the statute.
SWAT 24 Shreveport Bossier, Inc. v. Bond, 2000-1695 (La.6/29/01), 808
So.2d 294[c]iting Stogner v. Stogner, 98-3044, p. 5 (La.7/7/99), 739
So.2d 762, 766; State v. Piazza, 596 So.2d 817, 819 (La.1992). The
fundamental question in all cases of statutory construction is legislative
intent and the reasons that prompted the legislature to enact the law.
Succession of Boyter, 99-0761, p. 9 (La.1/7/00), 756 So.2d 1122, 1128.
When a law is clear and unambiguous and its application does not lead
to absurd consequences, it shall be applied as written, with no further
inquiry made in search of the legislative intent. La. C.C. art. 9; La. R.S.
1:4. However, when a law is susceptible of different meanings, “it must
be interpreted as having the meaning that best conforms to the purpose
of the law.” La. C.C. art. 10.

The meaning and intent of a law is determined by considering the
law in its entirety and all other laws concerning the same subject matter
and construing the provision in a manner that is consistent with the
express terms of the statute and with the obvious intent of the lawmaker
in enacting it. Bond, supra at 302; Boyter, supra at 1129; Stogner,
supra at 766. The statute must therefore be applied and interpreted in
a manner that is logical and consistent with the presumed fair purpose
and intention the legislature had in enacting it. Boyter, 756 at 1129.
Courts should give effect to all parts of a statute and should not adopt a
statutory construction that makes any part superfluous or meaningless,
if that result can be avoided. Langlois v. East Baton Rouge Parish Sch.
Bd., 99-2007 (La.5/16/00), 761 So.2d 504, 507; Boyter, 756 at 1129.
Furthermore, “the object of the court in construing a statute is to
ascertain the legislative intent and, where a literal interpretation would
produce absurd consequences, the letter must give way to the spirit of the
law and the statute construed so as to produce a reasonable result.” First
Nat'l Bank of Boston v. Beckwith Mach. Co., 94-2065, p. 8 (La.2/20/95),
650 So.2d 1148, 1153 (quoting Smith v. Flournoy, 238 La. 432, 115
So.2d 809, 814 (1959)).

The starting point for the interpretation of any statute is the
language of the statute itself. Cat’s Meow, Inc. v. City of New Orleans,
98-0601, p. 15 (La.10/20/98), 720 So.2d 1186, 1198; Touchard v.
Williams, 617 So.2d 885 (La.1993).

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“Residential” is defined in Merriam Webster’s Collegiate Dictionary, 996

(10th ed. 1993), as “used as a residence or by residents”; “restricted to or occupied by

residences”; and “of or relating to residence or residences.” “Residence” is defined as

“a building used as a home.” Id. “Commercial” is defined as “occupied with or

engaged in commerce or work intended for commerce.” Id. at 231. Blacks Law

Dictionary, 270 (6th ed. 1990), defines “commercial” as “[r]elates to or is connected

with trade and traffic or commerce in general; is occupied with business and

commerce.”

Considering these definitions, we find that residential property pertains

to property used for residences or dwellings, whereas commercial property applies to

areas where trade or business is conducted. Thus, immovable property may be

classified as residential or commercial. However, these two types of classifications are

not exclusive of the ways in which immovable property may be classified. Other types

include agricultural, farm, or range land, park or recreational land, and swamp, marsh,

or wetlands. Thus, strictly construing this statute against prescription and in favor of

the Stevens’ claim, we find that “residential” and “commercial” do not apply in all

instances where immovable property is conveyed. Had the legislature intended such,

it would have said “all immovable property.” Accordingly, we find that classifications

of immovable property exist other than residential and commercial.

At the hearing on the exceptions, counsel for the Stevens argued that the

property at issue was raw, unimproved land. However, we find that whether the

property was classified as residential or some other type of property, the Stevens’ claim

has not prescribed based on the application of the doctrine of contra non valentum.

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In Picard v. Vermilion Parish School Board, 00-1222, pp. 3-6 (La.App.

3 Cir. 4/4/01), 783 So.2d 590, 594-95, writ denied, 01-1346 (La. 6/22/01), 794 So.2d

794, we stated with regard to contra non valentum:

According to this theory, prescription does not begin to run until “a
plaintiff either knew or should have known of a cause of action, even if
that knowledge does not occur until long after the wrongful conduct at
issue has occurred.” Simmons v. Templeton, 97-2349, 98-43, p. 4
(La.App. 4 Cir. 11/10/98), 723 So.2d 1009, 1012, writs denied, 98-3050,
98-3060 (La.2/5/99); 738 So.2d 4, 738 So.2d 5. Louisiana jurisprudence
considers contra non valentum to be “an exceptional remedy . . . in direct
contradiction to the articles in the Civil Code” which must be “strictly
construed.” Harsh v. Calogero, 615 So.2d 420, 422 (La.App. 4
Cir.1993).

Under Louisiana law, the doctrine of contra non valentum halts the
running of prescription when the circumstances of the case fall into one
of the four categories:

(1) when courts are legally closed; (2) when administrative
or contractual restraints delay the plaintiff’s action; (3) when
the defendant prevents the plaintiff from bringing suit; and
(4) when the plaintiff does not know nor reasonably should
know of the cause of action.

In re Med. Review Panel Proceeding Vaidyanathan, 98-0289 (La.App. 4
Cir.9/23/98); 719 So.2d 604, writ denied, 98-2674 (La.12/18/98); 732
So.2d 1238; Chaney v. State Through the Department of Health and
Human Resources, 432 So.2d 256, 258-59 (La.1983). Although contra
non valentum is a legal principle, its application to the facts of the case
and a determination of whether or not the Plaintiffs were indeed
prevented from filing their claim under one of the four circumstances is
an issue of fact. Therefore, the trial court’s finding of fact on this issue
is subject to the manifest error, clearly wrong standard of review. Rosell
v. ESCO, 549 So.2d 840 (La.1989).

....

The principles of contra non valentum do not halt the running of
prescription “if the plaintiff’s ignorance is the result of his own
willfulness or neglect.” Matthews v. Sun Exploration & Prod. Co., 521
So.2d 1192, 1197 (La.App. 2 Cir.1988). That is, the plaintiff will be
deemed to know what he could by “reasonable diligence” have learned.
Id. Prescription runs from the time that the plaintiff has actual or

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constructive knowledge of the act, which has been defined as “the time
at which the plaintiff has information sufficient to excite attention and
prompt further inquiry.” National Council on Compensation Ins. v. Quixx
Temporary Serv., Inc., 95-725, p. 7 (La.App. 4 Cir. 11/16/95), 665 So.2d
120, 124. Prescription does not begin to run at the first indication that the
plaintiff may have suffered harm, but rather it begins to run “when
plaintiff has reasonable basis to pursue claim against specific defendant.”
Jordan v. Employee Transfer Corp., 509 So.2d 420, 424 (La.1987). The
heart of the inquiry into constructive knowledge is the reasonableness of
plaintiff's inaction. Id.

Here, we find that the facts of this case fall squarely under the fourth

category of contra non valentum. This category, known as the “discovery rule,”

provides that “prescription does not accrue against a party ignorant of its rights

provided that ignorance is not willful, negligent or unreasonable.” Amoco Prod. Co.,

838 So.3d at 830. In this instance, the Stevens purchased their tract of land from the

Bruces and commenced excavating a pond one year later. It was at that time that they

discovered the buried hazardous waste on their property. Thus, they were ignorant of

their redhibition claim until they dug it up. After unearthing the hazardous waste, the

Stevens filed suit against their ancestors in title within one year of their discovery. The

judgment of the trial court finding that the application of contra non valentum was

unavailable to the Stevens due to an absence of bad faith on the part of the Bruces is

clearly wrong. Such a showing is not required by the discovery rule. Accordingly, we

find that contra non valentum applied to suspend the running of prescription against

the Stevens’ claim. Since they filed their petition in redhibition within one year of

their discovery of the buried hazardous waste, their petition was timely. The trial

court’s judgment sustaining the peremptory exception of prescription in favor of the

Bruces is reversed, and this matter is remanded for further proceedings.

RIGHT OF ACTION

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In their final assignment of error, the Stevens argue that the trial court

erred in granting the peremptory exception of no right of action in favor of the Vesta

Breaux defendants.

In Hargroder v. Columbia Gulf Transmission Co., 290 So.2d 874, 875

(La.1974), the supreme court distinguished between an exception of no right of action

and an exception of no cause of action:

In Roy O. Martin Lumber Co. v. St. Denis Securities Co., 225 La. 51, 72
So.2d 257 (1954), this Court distinguished the two exceptions as follows:

‘Generally speaking, an exception of no right of action
serves to question the right of a plaintiff to maintain this
suit, i.e., . . . his interest in the subject matter of the
proceeding, whereas an exception of no cause of action
addresses itself to the sufficiency in law of the petition and
the exhibits attached thereto. Outdoor Electric Advertising
v. Saurage, 207 La. 344, 21 So.2d 375; Termini v.
McCormick, 208 La. 221, 23 So.2d 52 and Bartholomew v.
Impastato, La.App., 12 So.2d 700. The latter is triable
entirely on the face of the papers, while evidence may be
received under an exception of no right of action for the
purpose of showing that plaintiff does not possess the
right he claims or that the right does not exist. Soniat v.
White, 153 La. 424, 96 So. 19; Schmidt v. Conservative
Homestead Association, 181 La. 369, 159 So. 587; Duplain
v. Wiltz, supra (La.App., 174 So. 652) and La Casse v. New
Orleans, T. & M.R. Co., 135 La. 129, 64 So. 1012.’

(Emphasis added).

The trial court sustained the exception of no right of action and dismissed

the Stevens’ claim under La.R.S. 30:2039,1 based on an absence of evidence relating

1
Louisiana Revised Statute 30:2039 provides:

A. If a landowner has actual or constructive knowledge that his property:

(1) Has been used for the disposal of hazardous waste or as a solid waste landfill, except as
provided in rules, and such wastes remain on the property, and if recording of the notice provided
for herein is required by the Louisiana Solid Waste Regulations or the Louisiana Hazardous Waste
Regulations; or

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to the Vesta Breaux defendants’ knowledge of the hazardous waste located on their

property. We reverse the trial court’s finding as it went beyond the parameters of a

hearing on an exception of no right of action. The Vesta Breaux defendants were

limited to presenting evidence showing that the Stevens did not possess the right they

claim or that the right did not exist. Here, the trial court enquired into the merits of the

(2) Has been identified by the department as an inactive or abandoned solid waste landfill
or hazardous waste site,

he shall cause notice of the identification of the location of the waste site to be recorded in the
mortgage and conveyance records of the parish in which the property is located. Such notice shall
be made in a form approved by the secretary and within the time specified by the secretary. If a
landowner fails or refuses to record such notice, the secretary may, if he determines that the public
interest requires, and after due notice and an opportunity for a hearing has been given to a
landowner, cause such notice to be recorded. The clerk of court shall forward to the Department of
Environmental Quality a copy of each notice recorded by a landowner in accordance with this
Subsection.

B. (1) If any person wishes to remove such notice, he shall notify the secretary prior to
requesting the removal from the clerk of court in the parish where the property is located. The
request shall specify the facts supporting removal of the notice, including any evidence that the
waste no longer poses a potential threat to health or the environment. Upon finding that the waste
no longer poses a potential threat to health or the environment, the secretary shall approve removal
of the notice.

(2) If approval is granted by the secretary, the request may be made by affidavit to the clerk
of court for the removal of the notice and it shall be removed. Within ten days after removal, the
clerk of court shall send a notice of the removal to the secretary. If the secretary objects to the
removal of such notice, or fails to make a final determination upon the request within ninety days,
the person desiring to have the notice removed may petition the court in the parish where the
property is located for removal of the notice and after a contradictory hearing between the
landowner, the clerk of court, and the secretary or his designee, the court may grant such relief upon
adequate proof by the petitioner that the property no longer contains the waste which may pose a
potential threat to health or to the environment.

C. This Section shall not apply to any facility which is operating under a permit issued by
the department until such time as such notice is required by an order of the secretary, by a permit,
or by rule or regulation applicable to such facility.

D. The failure of a landowner to file the required notice may constitute grounds for an action
in redhibition under the applicable provisions of Civil Code Articles 2520 et seq., unless the
purchaser has actual or constructive knowledge that the property has been used for such purposes.

E. Any action under this Section must be commenced within one year from the date the
purchaser first knows of the existence of the fact which gives rise to the action, but in any event
within three years of the date upon which the purchaser acquired his ownership interest in the
property. Venue shall be in any parish in which the property or any portion thereof is located.

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matter by requesting evidence pertaining to their knowledge of the hazardous waste.

This was error. The Stevens clearly have a right of action to bring this suit against the

Vesta Breaux defendants. The judgment of the trial court is reversed and the matter

is remanded for further proceedings.

CONCLUSION

For the foregoing reasons, the judgment of the trial court sustaining the

peremptory exceptions of prescription and no right of action are reversed and this

matter is remanded for further proceedings. The costs of this appeal are assessed fifty

percent to the defendants-appellees, Darren and Tina Bruce, and fifty percent to the

defendants/appellees, Vesta Breaux Pellerin, Judy Breaux Touchet, Cynthia Breaux

McAdams, Elaine Breaux Broussard, and Darrell Breaux.

REVERSED AND REMANDED.

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