Kelly G. Aucoin v. Southern Quality Homes, LLC

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

CA 06-979

KELLY G. AUCOIN, ET AL.

VERSUS

SOUTHERN QUALITY HOMES, LLC, ET AL.

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APPEAL FROM THE
SIXTEENTH JUDICIAL DISTRICT COURT
PARISH OF IBERIA, NO. 99791-C
HONORABLE JOHN E. CONERY, DISTRICT JUDGE

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JOHN D. SAUNDERS
JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, John D. Saunders, and
Billy Howard Ezell, Judges.

AFFIRMED.

Patterson F. Willis, Jr.
Attorney at Law
P. O. Box 507
Opelousas, LA 70571
(337) 948-1908
Counsel for Plaintiffs/Appellees:
Kelly G. Aucoin
Cindy Aucoin

Lamont Paul Domingue
Voorhies & Labbe
P. O. Box 3527
Lafayette, LA 70502-3527
(337) 232-9700
Counsel for Defendant/Appellant:
Dynasty Homes

SAUNDERS, Judge.

This is a redhibition case wherein a buyer of a mobile home and land sued the

manufacturer of the mobile home and seller of the mobile home and land. The buyer

alleged that the seller and manufacturer were solidarily bound for redhibitory defects

throughout the mobile home.

The trial court found both the manufacturer and seller solidarily bound to the

buyer for the return of the purchase price of the mobile home and land and expert

fees. Further, the trial court found both the manufacturer and seller solidarily bound

to the buyer for mental pain and suffering due to his nonpecuniary interests in the

mobile home. Finally, the trial court found the manufacturer and seller in bad faith

and therefore solidarily bound for the fees of the buyer’s attorney.

The manufacturer appealed the trial court’s judgment claiming multiple errors.

First, the manufacturer claimed that it was error to find the manufacturer solidarily

bound with the seller. Second, the manufacturer claimed it was error for the trial court

to find the manufacturer liable for damages to the buyer for improper setup and

sealing of the home and it was error for the trial court to find the manufacturer liable

for return of the purchase price of the land and costs associated with preparing the

land for the mobile home. Third, the manufacturer claimed it was error for the trial

court to find the manufacturer liable for the mental pain and suffering of the buyer.

Finally, the manufacturer claimed it was error for the trial court to assess the

manufacturer for excessive expert witness fees and it was error for the trial court to

award interest on those expert fees.

The buyer answered the appeal and claimed that the trial court erred when it

did not award principle and interest on the payments made on the mobile home. The

judgment of the trial court is affirmed on all assignment of errors.

FACTS AND PROCEDURAL HISTORY:

On July 6, 2001, plaintiff, Kelly Aucoin (hereinafter “Aucoin”), purchased a

manufactured mobile home and land from defendant, Southern Quality Homes, LLC

(hereinafter “Southern Quality”) for $94,980.00. The mobile home had been delivered

to Southern Quality by its manufacturer, Dynasty Homes (hereinafter “Dynasty”).

After delivery and setup of the mobile home, Aucoin and his wife began to

experience problems and defects with the mobile home. From August 11, 2001,

through February 2002, Southern Quality, Dynasty or someone hired by either of

them was called by Aucoin or his wife on sixty-nine different occasions. Despite

eight attempted repairs numerous defects in the home were not remedied.

Aucoin filed a complaint in March of 2002 with the Louisiana Manufactured

Housing Commission, but ultimately filed suit against both Southern Quality and

Dynasty alleging redhibitory defects in the home and seeking to hold Southern

Quality and Dynasty solidarily bound for rescission of the sale, damages and

expenses.

After a trial on the merits, on February 23, 2006, the trial court issued its Final

Amended Judgment in favor of Aucoin and against defendants, Dynasty and Southern

Quality, in solido, for a return of the purchase price of the home and land due to

redhibitory defects. Further, because the trial court found that Aucoin had a

nonpecuniary interest in this mobile home, its judgment not only included damages

for the return of the purchase price of the home and land ($93,980.00), closing costs

($4,190.33), dirt work ($1,000.00), and expert fees ($25,000.00), but it also included

an award for Aucoin’s mental pain and suffering ($25,000.00), medical bills

($288.18), prescription bills ($285.00), insurance and taxes ($6,446.13), and expenses

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related to depositions of Aucoin’s medical doctors ($2,160.35). The trial court further

found both the manufacturer and seller in bad faith and therefore awarded attorney’s

fees ($25,000.00).

Dynasty filed an appeal on March 24, 2006, claiming numerous errors

committed by the trial court. Aucoin answered the appeal and claimed that the trial

court erred by not awarding him the principle and interest he paid for the mobile

home since its purchase. We affirm the trial court on all assignment of error.

ASSIGNMENTS OF ERROR:

1. Did the trial court err in holding Dynasty Homes solidarily bound with
Southern Quality Homes?

2. Did the trial court err in holding Dynasty Homes liable for the improper set-up
and sealing of the mobile home, for the return of the purchase price of the land
and for the dirt work performed on the land to ready it for the mobile home?

3. Did the trial court err in holding Dynasty Homes liable for damages for the
mental pain and suffering and associated expenses incurred by Aucoin?

4. Did the trial court err in awarding Aucoin excessive expert witness fees and in
awarding legal interest on plaintiff’s expert fees?

5. Did the trial court err in failing to award Aucoin damages for principle and
interest paid on the mobile home since its purchase?

ASSIGNMENT OF ERROR #1:

Dynasty asserts that the trial court erred by finding that it was solidarily bound

with Southern Quality to Aucoin in his redhibition action. We disagree.

Louisiana Civil Code Article 2545, in pertinent part is as follows:

A seller who knows that the thing he sells has a defect but omits
to declare it... is liable to the buyer for the return of the price with
interest from the time it was paid, for the reimbursement of the
reasonable expenses occasioned by the sale and those incurred for the
preservation of the thing, and also for damages and reasonable attorney
fees.

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“When the thing sold contains a redhibitory defect, the manufacturer and the

seller are solidarily liable to the buyer for a return of the purchase price.” Womack

and Adcock v. 3M Business Products Sales, Inc., 316 So.2d 795 (La.App. 1 Cir.

1975); Media Production Consultants, Inc. v. Mercedes-Benz of North America, Inc.,

262 So.2d 377 (La. 1972); comment (c) La.Civ.Code art. 2545. In Louisiana, and

more specifically in this circuit, there is a presumption that manufacturers and sellers

are solidarily bound to the buyer for his or her redhibition claim. LeGros v. ARC

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

Dynasty has argued that since the 1996 revision of La.Civ.Code art. 2323 and

La.Civ.Code art. 2324, a finding that the manufacturer and seller have a solidary

obligation is no longer appropriate in redhibition cases. Dynasty argues that the seller

and the manufacturer should instead have their fault compared under the above

referenced articles. We disagree.

Dynasty has cited two cases to provide a foundation for its position. First,

Dynasty cites Petroleum Rental Tools, Inc. v. Hal Oil & Gas Company, Inc., 95-

1820, 95-1821 (La.App. 1 Cir. 8/22/97), 701 So.2d 213. In the Petroleum Rental

Tools case the court was not presented with the issue of whether a manufacturer and

a seller are solidarily bound. The plaintiff in the Petroleum Rental Tools case had

already recovered in its action for redhibition against a seller of a used casing that

was defective. After the seller had been released from the case, the court attributed

fault to that seller for the damages its defective casing caused in eventually making

an entire oil rig useless. While there was fault allocation to a defendant for the

damages caused by its product found to have redhibitory defects, there was never any

discussion in the case regarding the issue for which it was cited. We find no merit in

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Dynasty relying upon this case for the purposes of avoiding being found solidarily

bound with Southern Quality.

Next, Dynasty cites Hampton v. Cappaert Manufactured Housing, Inc., 36,773

(La.App. 2 Cir. 1/29/03), 839 So.2d 363. In this case, the second circuit rejected the

seller’s argument that the manufacturer was solidarily bound with them to the

plaintiff. The seller based its argument for solidarity on Duplechain v. Clausing

Machine Tools, 420 So.2d 720 (La.App. 4 Cir. 1982). The Hampton court refused to

follow Duplechain because that case was based on La.Civ.Code art. 2324. The court

reasoned that because the code article had been amended since the Duplechain case,

it would be unsound to rely on reasoning from that case.

The second circuit instead decided that the manufacturer and seller were liable

jointly and divisibly. The Hampton court did so because the revised La.Civ.Code art.

2324 required that a conspiracy be found between parties in order to be solidarily

bound. In Hampton, because there was no conspiracy proven, and because there was

no clear expression by the seller and manufacturer of an intent to be solidarily bound

under La.Civ.Code art. 1796, the court reasoned that there was no basis for finding

the seller and the manufacturer solidarily bound under La.Civ.Code art. 2324.

While we respect the second circuit for its analysis and choice to use

La.Civ.Code art. 2324 in finding that the manufacturer and seller are not solidarily

bound, we instead choose to rely upon La.Civ.Code art. 2545, Media Production

Consultants, Inc., Womack and Adcock, and LeGros.

We choose to use La.Civ.Code art. 2545 and the Media line of cases for several

reasons. First, Media has not been overruled and the legislature has endorsed its

interpretation and holding in comment (c) of La.Civ.Code art. 2545.

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Second, it is well settled in Louisiana that if there are two conflicting statutes,

a more specific statute will prevail over the more general. State in the Interest of A.C.,

93-1125 (La. 1/27/94), 643 So.2d 719. We feel that La.Civ.Code art. 2545 deals more

specifically with a fact intense situation, redhibition. A redhibition claim exists when

a narrowly tailored set of circumstances set forth by the legislature in La.Civ.Code

arts. 2520, et. seq. arises.

Third, a redhibition claim has its basis in breach of warranty and breach of

contract whereas most actions decided under La.Civ.Code art. 2324 have their basis

in tort. The remedy in a redhibition claim is that of reduction of price for the thing or

recision of the contract and return of the purchase price. The remedy given in a tort

claim is usually that of compensation for damages. To find that the legislature

intended for a code article located in Title V of Book 3 “Obligations Arising Without

Agreement” dealing with tortious conduct to be applied over code articles wherein

the legislature has specifically spelled out a remedy, is something this court is not

inclined to do.

Finally, our civilian principles require that we follow the clear legislative intent

expressed in La.Civ.Code art. 2545 to hold manufacturers and sellers generally

solidarily bound to help protect consumers. An unsophisticated buyer relies upon

both the seller and manufacturer to provide a product that is free from redhibitory

defects. Because of this reliance, the manufacturer and seller should be solidarily

bound, especially if both the manufacturer and the seller each created redhibitory

defects, and, therefore, each could have been found fully responsible for the single

debt of a return or reduction of the purchase price to the buyer. We find no reason

why the buyer should be expected to bear the risk of receiving less than they would

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have received if there was but one party creating a redhibitory defect. If we were not

to hold the manufacturer and seller solidarily bound, the buyer would bear the burden

of receiving less than full indemnity in his or her redhibition action while the

manufacturer would be able to benefit from doing business with a seller that also

created a redhibitory defect in a product that they put on the market together. We find

this result unconscionable.

Since we have chosen to conduct our analysis with regards to whether Dynasty

and Southern Quality are solidarily bound under La.Civ.Code art. 2545, Media

Production Consultants, Inc., Womack and Adcock, and LeGros, we presume that

Dynasty and Southern Quality are solidarily bound to Aucoin. In order for Dynasty

to not be held solidarily bound with Southern Quality, it must show that the

redhibitory defects present in the home sold to Aucoin were solely caused by

Southern Quality.

The trial court found that the main and principle redhibitory defect in the home

is a moisture problem that caused mold to proliferate. Therefore, Dynasty, in order

to rebut the presumption that they are solidarily bound with Southern Quality, must

show that they have no fault in creating this redhibitory defect in the home. They

have failed to do so.

Whether Dynasty had any fault in creating any redhibitory defect in the home

is a finding of fact. A trial judge’s findings of fact will not be disturbed unless they

are manifestly erroneous or clearly wrong. Stobart v. State, through Dep’t of Transp.

& Dev., 617 So.2d 880 (La.1993). “Absent ‘manifest error’ or unless it is ‘clearly

wrong,’ the jury or trial court’s findings of fact may not be disturbed on appeal.”

Sistler v. Liberty Mut. Ins. Co., 558 So.2d 1106, 1111 (La.1990). “If the trial court

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or jury’s findings are reasonable in light of the record reviewed in its entirety, the

court of appeal may not reverse, even though convinced that had it been sitting as the

trier of fact, it would have weighed the evidence differently.” Id. at 1112.

After a thorough review of the record, we find that the trial court’s

determination that both Dynasty and Southern Quality were at fault in creating the

main and principle redhibitory defect in the home is reasonable. The trial court put

great weight on the testimony of Mr. Alexis Mallet, Jr. Mr. Mallet is an expert in

general construction, in estimating, in analysis of construction and design defects, in

building science, and mold remediation. Mr. Mallet testified that the main and

principle defect in the home was the moisture problem that cause a proliferation of

mold. He also testified that this infiltration of moisture occurred because of a

combination of negative air pressure and several defects in the home. Mr. Mallet

testified that the manufacturer was at fault for several defects that related to the

infiltration of moisture in the home including, but not limited to, improper installation

of the vinyl vapor barrier, improper sealing of windows, improper fastening and

installation of roof shingles, and improper installation of drywall on the ceiling.

Further, the trial court also relied on the testimony of Mr. Ervin Ritter. Mr.

Ritter is an expert in environmental engineering and mechanical engineering. Mr.

Ritter concurred with the testimony of Mr. Mallet. He also found that the negative air

pressure, coupled with the defects in the home, caused a moisture infiltration that

resulted in mold proliferation. Mr. Ritter then testified that mold proliferation leads

to a complete deterioration of the home. He directly related some of those defects to

the manufacturer, Dynasty, as well.

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Accordingly, we find that the trial court was not manifestly erroneous or clearly

wrong in finding that Dynasty, as manufacturer, and Southern Quality, as seller, are

solidarily bound. There is evidence in the record to find that both Dynasty and

Southern Quality were responsible for defects in the home sold to Aucoin. This

assignment of error lacks merit.

ASSIGNMENT OF ERROR #2:

Dynasty claims that the trial court erred in finding it liable for the improper

setup and sealing of the mobile home, and for the cost of the land and closing costs.

We disagree.

We have already determined that Dynasty is solidarily bound with Southern

Quality for the damages of Aucoin. Louisiana Civil Code Article 1794 states the

following: “An obligation is solidary for the obligors when each obligor is liable for

the whole performance. A performance rendered by one of the solidary obligors

relieves the others of liability toward the obligee.”

Under La.Civ.Code art. 1794, Dynasty is liable to Aucoin for the whole

performance. The whole performance in this case as dictated by La.Civ.Code art.

2545 is as follows: “[T]he return of the price with interest from the time it was paid,

for the reimbursement of the reasonable expenses occasioned by the sale and those

incurred for the preservation of the thing, and also for damages and reasonable

attorney fees. . .”

The improper setup and sealing of the home is part of the whole performance.
Therefore, Dynasty is liable to Aucoin for the damages caused by the improper setup
and sealing of the home. Accordingly, we affirm to trial court’s finding that Dynasty
is liable to Aucoin for the damages occasioned by the improper set up and sealing of
the home.
Next, Dynasty argues that the trial court erred in finding it responsible for a
return of the purchase price and dirt work associated with the land bought by Aucoin.
This argument lacks merit.

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Louisiana Civil Code Article 2540 states the following: “When more than one
thing are sold together as a whole so that the buyer would not have bought one thing
without the other or others, a redhibitory defect in one of such things gives rise to
redhibition for the whole.”
Aucoin was sold the home and lot together at the same time. The trial court
gave great weight to the testimonies of both Aucoin and his wife. Aucoin and his wife
testified that they would not have bought the land without purchasing the home.
Further, the cost of the dirt work was incurred to ready the land for this defective
home. Therefore, under La.Civ.Code art. 2540, the land and dirt work associated with
readying the land for the home are part of the whole performance. Accordingly, as we
have determined that as Dynasty and Southern Quality are solidarily bound and
Dynasty is bound for the whole performance, Dynasty is liable for the return of the
purchase price of the land and the costs associated with the dirt work. The trial court’s
finding as such are affirmed.
ASSIGNMENT OF ERROR #3:
Dynasty argued that the trial court erred in holding it liable for damages for
mental pain and suffering and associated expenses suffered by Aucoin. We disagree.
Dynasty argues that the sole recovery available to Aucoin for nonpecuniary
damages for a defective product is under the Louisiana Products Liability Act. This
assertion lacks merit. This court in the cases of Taylor v. Burton,, 97-1348 (La.App.
3 Cir. 3/6/98), 708 So.2d 531, and Mayerhofer v. Three R’s, Inc., 597 So.2d 151
(La.App. 3 Cir.), writ denied, 600 So.2d 680 (La.1992), among others, has held that
a purchase of a home can have a nonpecuniary purpose.
The Louisiana Supreme Court in Young v. Ford Motor Co., Inc., 595 So.2d
1123 (La.1992), held that when the requisites of La.Civ.Code arts. 2545 and 1998 are
met, a buyer can recover for mental anguish damages that were caused by the
purchase of a defective product.
We have already found in Assignment of Error #1 that Dynasty is liable to
Aucoin under La.Civ.Code art 2545, so now we must determine if Aucoin qualifies
for recovery for nonpecuniary damages under La.Civ.Code art. 1998.
Louisiana Civil Code Article 1998 states the following:
Damages for a nonpecuniary loss may be recovered when the
contract, because of its nature, is intended to gratify a nonpecuniary
interest and, because of the circumstances surrounding the formation or
the nonperformance of the contract, the obligor knew, or should have
known, that his failure to perform would cause that kind of loss.
Regardless of the nature of the contract, these damages may be
recovered also when the obligor intended, through his failure, to
aggrieve the feelings of the obligee.

The trial court gave great weight to the testimonies of Aucoin and his wife.

Much like the Taylor, Mayerhofer, and Thomas cases above, the Aucoin’s testimony

displayed a considerable nonpecuniary interest in acquiring this home. They testified

that prior to the purchase they were living in a single-wide mobile home that was

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nearly three decades old, that the family was not comfortable because the mobile

home was small and old , that they were purchasing the home to entertain family and

friends and that purchasing this home would fulfill, to them, the American Dream.

Given the reasonable credibility determination of the trial court made regarding

the veracity of the Aucoins, and given that Aucoin and his wife testified that he

entered into this contract for many nonpecuniary interests, the trial court’s finding of

liability on the part of Dynasty for the mental pain and suffering and associated

expenses suffered by Aucoin is affirmed.

ASSIGNMENT OF ERROR #4:

Dynasty argues that the trial court erred in awarding Aucoin excessive expert

witness fees and erred in finding those expert fees as an element of damages in

redhibition and therefore awarding interest on those expert fees. We disagree.

In Trans Louisiana Gas. Co. v. Heard, 629 So.2d 500, 505 (La.App. 3 Cir.

1993), this court stated the following:

The fixing of expert witness fees is largely within the sound discretion
of the trial court, and on appeal, we may not reverse the trial court's
fixing thereof absent an abuse of discretion. In fixing expert witness
fees, each case must turn on its own peculiar facts and circumstances.
However, the jurisprudence has provided us with factors to consider
such as the amount of time consumed by the experts in compiling their
reports; the amount charged the landowner; the amount of time spent in
preparing for trial; the amount of time actually spent in court; the
expertise of the expert; the difficulty of the appraisal; the amount
involved in the award; and the degree to which the expert's opinion
aided the court in its decision.

Dynasty argues that the trial court rejected the opinion of Mr. Mallet and Mr.

Ritter, the plaintiff’s experts. We find the opposite to be true. The trial court found

the testimony of both plaintiff’s experts credible and helpful. Further, there is

evidence in the record that the experts spent considerable time and effort performing

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tests at the plaintiff’s home and preparing for the trial. Further, the experts testified

regarding a very complex issue for an extensive three-day trial. Given these facts and

the complexity of the testimony of the experts, we find no abuse of discretion on the

part of the trial court in fixing their fees.

Finally, Dynasty argues that the trial court incorrectly found that expert fees

were an element of damages in redhibition and awarded Aucoin interest on his

incurred expert fees. This argument lacks merit.

Dynasty argues that the trial court incorrectly interpreted A. Copeland

Enterprises, Inc. v. Harimaw, Inc., 528 So.2d 707 (La.App. 5 Cir. 1988), writ denied

531 So.2d 475 (La.1988), in finding that the expert fees are an element of Aucoin’s

redhibition claim. Dynasty attempts to distinguish the experts in the case at bar from

the experts in the A. Copeland Enterprises, Inc. case by claiming that the experts in

the A. Copeland Enterprises, Inc. case were part of the plaintiff’s cost of correction

whereas the experts here were hired to prosecute Aucoin’s redhibition claim. Dynasty

cites no authority for why there needs to be such a distinction made, and we were

unable to find any such authority. As cited above, the trial court has great discretion

in setting expert fees, and we find no abuse of discretion on the part of the trial court

in assessing the expert fees or interest upon them therein. Therefore, we find that this

assignment or error lacks merit.

ASSIGNMENT OF ERROR #5:

Aucoin argues that the trial court erred in failing to award Aucoin

reimbursement for principle and interest payments made on the mobile home since

its purchase. We disagree.

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The remedy chosen by the trial court in this case was that of return of the

purchase price of the home to Aucoin and judicial interest for the purchase price from

the date of sale. If we were to further find that Aucoin should be reimbursed for the

principle and interest he paid for the house, we would be allowing him to recover the

return of the purchase price along with the principle he paid. This would be a double

recovery. Further, if we were to grant Aucoin reimbursement for the actual interest

paid and for the judicial interest awarded by the trial court, we again would be

allowing Aucoin to recover twice. This would be inappropriate. Therefore, the

judgment of the trial court denying Aucoin damages for principle and interest for

payments made for the home is affirmed.

CONCLUSION:

The judgment of the trial court is affirmed on all assignments of error.

Additionally, we award five thousand dollars in attorney’s fees to Aucoin for work

performed on this appeal. The costs of this appeal are assessed to Dynasty Homes.

AFFIRMED.

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