John E. Gradney, Jr. v. Chandelier Homes, Inc.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

04-1546

JOHN E. GRADNEY, JR., ET AL.

VERSUS

CHANDELEUR HOMES, INC., ET AL.

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APPEAL FROM THE
THIRTEENTH JUDICIAL DISTRICT COURT,
PARISH OF EVANGELINE, NO. 64880,
HONORABLE THOMAS. F. FUSELIER, DISTRICT JUDGE

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MICHAEL G. SULLIVAN
JUDGE

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Court composed of Oswald A. Decuir, Michael G. Sullivan, and Billy Howard Ezell,
Judges.

AFFIRMED.

M. Terrance Hoychick
Young, Hoyhick & Aguillard
Post Office Drawer 391
Eunice, Louisiana 70535-0391
(337) 457-9331
Counsel for Plaintiffs/Appellants:
John E. Gradney, Jr.
Tami Lyn Gradney

Steven J. Bienvenu
Dauzat, Falgoust, Caviness & Bienvenu
Post Office Box 1450
Opelousas, Louisiana 70571
(337) 942-5811
Counsel for Defendant/Appellee:
Jim Tatman’s Mobile Homes, Inc.

Lamont P. Domingue
Elisabeth R. Kraft
Voorhies & Labbé
Post Office Box 3527
Lafayette, Louisiana 70502-3527
(337) 232-9700
Counsel for Defendant/Appellant:
Chandeleur Homes, Inc.

SULLIVAN, Judge.

This redhibition case, which involves the sale of a mobile home, presents two

judgments for review on appeal. The first judgment sustained an exception of

prescription to the manufacturer’s third party demand for contribution against the

seller, who was alleged to have improperly installed the mobile home. (The seller had

previously been dismissed on an uncontested exception of prescription to the

Plaintiffs’ main demand because suit was not filed within four years from the date of

delivery, as required by La.Civ.Code art. 2534(A)(1).) The second judgment granted

the manufacturer’s motion for partial summary judgment dismissing those claims of

the Plaintiffs based upon allegations that the manufacturer is solidarily liable for

damages caused by the seller’s omissions and breach of obligations. For the

following reasons, we affirm both judgments.

Discussion of the Record

John and Tami Lyn Gradney purchased a mobile home manufactured by

Chandeleur Homes, Inc. (Chandeleur) from Jim Tatman’s Mobile Homes, Inc.

(Tatman’s) on July 16, 1998. On April 8, 2003, the Gradneys, individually and on

behalf of their minor child, sued Chandeleur and Tatman’s, alleging that, in July of

2002, approximately four years after the sale, they discovered moisture on the

flooring in one bedroom, and that, upon further investigation, they discovered the

exterior wall of that room was bowed or warped and had mold and mildew under the

vinyl siding. The Gradneys also alleged that Tatman’s told them Chandeleur was

responsible for correcting these problems, but that Chandeleur ignored their many

requests for repairs. According to the petition, as time passed, the warping and mold

problems spread throughout the home and, on October 31, 2002, the Gradneys were

forced to move because of these conditions. They sought rescission of the sale,

attorney fees, and damages for personal injuries, including medical expenses and

general damages.

Tatman’s responded with an exception of prescription based on La.Civ.Code

art. 2534(A)(1), which provides that an action in redhibition against a good faith

seller 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.” The Gradneys did not oppose the exception, and the judgment

dismissing Tatman’s from their main demand is now definitive.

Chandeleur, the manufacturer, subsequently sought leave to file a supplemental

answer to the Gradneys’ claim and a third party demand against Tatman’s, alleging

that it had identified additional defenses after the completion of discovery. In the

third party demand, Chandeleur alleged that, in the event it should be held solidarily

liable for Tatman’s actions, then it is entitled to contribution for Tatman’s acts or

omissions, which included the failure to inform the Gradneys of the necessary

elevations and preparations for the site where the mobile home was located, the

failure to properly install and set-up the mobile home, and the failure to investigate

and respond to the Gradneys’ complaints about the home. Tatman’s filed an

exception of prescription to this claim, which the trial court granted on December 2,

2003. Chandeleur then filed a motion for partial summary judgment as to the

Gradneys’ main demand, seeking dismissal of any claims that Chandeleur is solidarily

liable to them for damages caused by Tatman’s. The trial court also granted this

motion after a hearing on July 29, 2004. The Gradneys have appealed the judgment

granting partial summary judgment, and Chandeleur has appealed the judgment

sustaining the exception of prescription to its third party demand.

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Opinion

On appeal, the Gradneys argue that Chandeleur, as a manufacturer, is solidarily

liable for the actions of Tatman’s in installing and setting up the mobile home

because the contract of sale was not perfected until the completion of that process.

Chandeleur responds that Tatman’s assumed an independent duty of installation that

is apart from the manufacturing process; it further argues that it cannot be liable for

Tatman’s actions in the set-up of the home because it is not a licensed installer of

mobile homes in Louisiana. In the alternative, Chandeleur argues that, if it is

solidarily liable for Tatman’s actions, then Tatman’s exception of prescription should

not have been sustained because its cause of action for contribution does not arise

until it is cast in judgment.

Louisiana Civil Code Article 2520 provides that the seller warrants that the

thing sold is free from redhibitory defects or vices. A redhibitory defect “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.” Id. Even if the thing is not

rendered totally useless, a defect is redhibitory when “it diminishes [the thing’s]

usefulness or its value so that it must be presumed that a buyer would still have

bought it but for a lesser price.” Id. Under La.Civ.Code art. 2530, the seller’s

warranty against redhibitory vices covers “only defects that exist at the time of

delivery.”1

1
As this court recognized in Dalme v. Blockers Manufactured Homes, Inc., 00-244 (La.App.
3 Cir. 1/25/01), 779 So.2d 1014, writ denied, 01-1246 (La. 6/15/01), 793 So.2d 1248, La.R.S.
51:911.25 provides additional warranties to the first retail purchaser of a mobile home. We have not
discussed that statute in this opinion, however, because those warranties are effective for only one
year from the date of purchase. La.R.S. 51:911.25(A).

3

As pointed out in Bearly v. Brunswick Mercury Marine Division, 39,069

(La.App. 2 Cir. 10/27/04), 888 So.2d 309, only two Civil Code articles directly

address manufacturer liability in redhibition: La.Civ.Code art. 2531 provides that a

seller who is held liable for a redhibitory defect has an action against the

manufacturer “if the defect existed at the time the thing was delivered by the

manufacturer to the seller,” and La.Civ.Code art. 2545 provides that “[a] seller is

deemed to know that the thing he sells has a redhibitory defect when he is a

manufacturer. . . .” Jurisprudence, however, has clearly established that “the buyer’s

action for breach of implied warranty has been extended to all sellers in the chain of

sales back to the original manufacturer.” Womack & Adcock v. 3M Bus. Prods. Sales,

Inc., 316 So.2d 795, 796 (La.App. 1 Cir.1975); see also Media Prod. Consultants,

Inc. v. Mercedes-Benz of N. Am., Inc., 262 La. 80, 262 So.2d 377 (1972), recognizing

that the others in the chain of title are solidarily liable with the seller. The holdings

of these cases have been incorporated into the 1993 Revision Comments (c) and (d)

for Article 2545 and, as such, represent the accepted interpretation of that article.

LeGros v. ARC Servs., Inc., 03-918 (La.App. 3 Cir. 2/25/04), 867 So.2d 63.

In LeGros, 867 So.2d at 66, this court stated that the comments to La.Civ.Code

art. 2545 “have the effect of creating a presumption of solidary liability between

manufacturers and sellers in redhibition actions.” That statement was made in the

context of reviewing an exception of prescription heard before trial on the merits, in

which the trial court dismissed plaintiff’s suit against the later-added manufacturer

because it did not find the facts supported solidarity between that defendant and the

timely-sued seller. This court relied on the “presumption of solidarity” discussed

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above to keep both defendants in the suit, noting that the manufacturer’s liability, if

any, was a matter for trial on the merits.

In ruling on Chandeleur’s partial motion for summary judgment, the trial court

stated that it did not believe the manufacturer’s solidary liability would extend to the

acts of the seller in installing or setting up the mobile home, in the absence of proof

of a manufacturing defect. We find support for this position in the landmark case of

Rey v. Cuccia, 298 So.2d 840, 845 (La.1974) (emphasis added), wherein the court

stated: “When the sale is annulled for a redhibitory defect resulting from the original

manufacture, the purchaser can recover the pecuniary loss resulting from the unusable

thing sold from the manufacturer as well as the seller.”

In Rey, a camper trailer sustained serious breakage during its first 200 miles of

use. The plaintiffs were unable to prove exactly why the trailer broke apart, but it

was shown that the seller did not follow the manufacturer’s instructions in installing

the trailer hitch to the plaintiffs’ automobile, which may have contributed to the

severe swaying that occurred just prior to the breakup. Under these circumstances,

the supreme court found “no difficulty” in holding the seller liable for a redhibitory

defect, but recognized that the buyer’s case against the manufacturer “present[ed] a

more difficult issue.” Id. at 843. In particular, the supreme court was concerned that

the seller’s improper installation of the trailer hitch may have cast doubt as to whether

“any other underlying redhibitory defect existed at the time the manufacturer

delivered the trailer to [the seller].” Id. at 845 (emphasis added). The supreme court

imposed liability upon the manufacturer only after it determined that “the

preponderance of the evidence proves that the trailer break-up resulted from a defect

in construction or design which existed at the time the manufacturer Yellowstone sold

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the trailer to the seller Cuccia.” Id. at 846 (emphasis added). That evidence included

the total failure of the trailer within its first 200 miles of use, the manufacturer’s

failure to warn of the dire consequences of a slight deviation from its installation

instructions, and the absence of any misuse of the trailer by either the buyer or the

seller.

In the present case, the trial court’s ruling on partial summary recognizes what

is implicit in the Rey case: that the manufacturer will not be liable in redhibition if

the thing sold did not contain a manufacturing defect at the time the manufacturer

delivered it to the seller. As suggested by La.Civ.Code art. 2529, the plaintiff may

have other remedies against the seller governed by the law of sales and conventional

obligations, but there would be no solidarity between the manufacturer and the seller

because the manufacturer would not have breached its warranty obligation.

Accordingly, we find that the trial court’s ruling on partial summary judgment can be

affirmed to the extent that it recognizes that solidarity will not exist in the event that

the sole cause of the Plaintiffs’ damages is shown to be the seller’s improper

installation. In such a situation, contribution is also not an issue because of the

absence of solidarity.

The language of the judgment, however, goes beyond this situation, purporting

to dismiss Plaintiffs’ claims of solidary liability for damages based upon “any” act or

omission of the seller. Thus, the judgment as written also contemplates the situation,

as was the case in Rey, where the plaintiffs’ damages were the result of both a

manufacturing defect and the seller’s improper installation. For example, in Weaver

v. Fleetwood Homes of Mississippi, Inc., 327 So.2d 172, 178 (La.App. 3 Cir. 1976),

the court found that the defects complained of had “their origins both in the

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manufacture and the installation of the mobile home unit.” Under those

circumstances, the court found no error in the denial of the manufacturer’s third party

demand, stating that “[s]ince both [the manufacturer] and [the seller] are responsible

for the various defects found in the mobile home sold to plaintiff, neither is entitled

to indemnification from the other.” Id. at 178-79. See also Guyon v. Camper Village,

Inc., 428 So.2d 1014 (La.App. 1 Cir.), writ denied, 431 So.2d 1 (La.1983), in which

the court recognized that the seller’s negligent care of a camper that had easily

remediable manufacturing defects had no bearing on whether the plaintiff was

entitled to recover from the manufacturer in redhibition. In those situations where the

seller’s negligence “is a substantial factor in aggravating or maintaining the defect,”

the seller has been denied his right of indemnification under La.Civ.Code art. 2531,

but the plaintiff’s right to recover his full damages from either manufacturer or the

seller is not affected. Id. at 1017 (emphasis added).

In the event the Gradneys will be able to demonstrate solidarity as discussed

in the paragraph above, the effect of the seller’s dismissal from the main demand must

be considered. The trial court dismissed Chandeleur’s third party demand for

contribution against Tatman’s, finding that claim also had prescribed. As discussed

below, we find the dismissal of the third party demand was proper, but for different

reasons.

Louisiana Civil Code Article 1803 provides in part: “Remission of debt by the

obligee in favor of one obligor, or a transaction or compromise between the obligee

and one obligor, benefits the other solidary obligors in the amount of the portion of

that obligor.” Louisiana Civil Code Article 1804 (emphasis added) provides:

Among solidary obligors, each is liable for his virile portion. If
the obligation arises from a contract or quasi-contract, virile portions are

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equal in the absence of agreement or judgment to the contrary. If the
obligation arises from an offense or quasi-offense, a virile portion is
proportionate to the fault of each obligor.

A solidary obligor who has rendered the whole performance,
though subrogated to the right of the obligee, may claim from the other
obligors no more than the virile portion of each.

If the circumstances giving rise to the solidary obligation concern
only one of the obligors, that obligor is liable for the whole to the other
obligors who are then considered only as his sureties.

Additionally, Comment (c) to La.Civ.Code art. 1805, dealing with enforcement

of contribution, provides: “An obligor who has been released by his obligee is no

longer an obligor and therefore cannot be made a third party.”

As explained by the supreme court in Perkins v. Scaffolding Rental & Erection

Service, Inc., 568 So.2d 549, 551 (La.1990), “[t]he source of the right to claim

contribution is subrogation [to the rights of the plaintiff].” Accordingly, where the

plaintiff has released one solidary obligor, neither the plaintiff “nor any party seeking

to stand in [his] shoes” can have a cause of action against the released obligor based

upon the allegations in the plaintiff’s petition. Id. In Perkins, the plaintiffs failed to

appeal the dismissal with prejudice of one alleged joint tortfeasor on an exception of

no cause of action. The supreme court found that these circumstances amounted to

a tacit release of that defendant, which acted as a bar to a co-defendant’s claim for

contribution against the released defendant because the co-defendant had no greater

rights than those of the plaintiffs. The plaintiffs’ claims against the released

defendant would have been barred by res judicata; therefore, the co-defendant’s third

party demand was properly dismissed because it failed to state a cause of action for

contribution.

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In the present case, the Gradneys did not contest, nor did they appeal, Tatman’s

exception of prescription and subsequent dismissal with prejudice on their main

demand.2 Upon the finality of that judgment, all of their causes of action against

Tatman’s existing at that time “arising out of the transaction or occurrence that is the

subject matter of the litigation” were extinguished. La.R.S. 13:4231(2). In its

petition for contribution, Chandeleur acknowledges this prior dismissal.

Accordingly, we find no error in the dismissal of Chandeleur’s third party demand,

although the proper vehicle should have been through an exception of no cause of

action. The partial summary judgment was also proper, as it recognizes the

application of La.Civ.Code art. 1803.

Decree

For the above reasons, both judgments of the trial court are affirmed. Costs of

this appeal are assessed equally to Plaintiffs, John and Tami Gradney, and

Defendant/Third Party Plaintiff, Chandeleur Homes, Inc.

AFFIRMED.

2
The Gradneys’ failure to oppose or appeal the application of the prescriptive period for a
good faith seller under La.Civ.Code art. 2534(A)(1) precludes any consideration of whether
Tatman’s, through its acts of installation, became a manufacturer who is charged with knowledge
of a defect and, therefore, subject to the longer prescriptive period of La.Civ.Code art. 2354(B), or
of whether the Plaintiffs have any causes of action other than redhibition against Tatman’s, as
provided in La.Civ.Code art. 2529.

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