Mary J. Perrin v. Randy Tupper Homes, Etc.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

08-1418

MARY J. PERRIN AND HUNTER PERRIN

VERSUS

RANDY TUPPER HOMES, ET AL.

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APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 2007-957-A
HONORABLE D. KENT SAVOIE, JUDGE PRESIDING

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SYLVIA R. COOKS
JUDGE
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Court composed of Sylvia R. Cooks, John D. Saunders, Marc T. Amy, Elizabeth A.
Pickett, and Billy H. Ezell, Judges.
(Recommend Publication)

Amy, J., dissents and assigns reasons.
Pickett, J., dissents for the reasons assigned by Judge Amy.
Ezell, J., concurs

REVERSED AND REMANDED

Jere Jay Bice
Bice, Palermo & Veron, L.L.C.
P.O. Box 2125
Lake Charles, LA 70602
337-310-1600
COUNSEL FOR PLAINTIFFS/APPELLANTS:
Mary J. Perrin and Hunter Perrin

Charles V. Musso, Jr.
Plauche’, Smith & Nieset
P.O. Drawer 1705
Lake Charles, LA 70602-1705
337-436-0522
COUNSEL FOR DEFENDANTS-APPELLEES:
Randy Tupper Homes, Et Al.

COOKS, Judge.

FACTS

Hunter Perrin and his wife, Mary J. Perrin (Plaintiffs), while driving through

a developing subdivision on a Sunday afternoon, focused their attention on a town-

house nearing completion in Graywood Subdivision, Lake Charles, Louisiana

(Graywood). The couple, looking to purchase a new home in Graywood, stopped to

take a closer look at the home, observing that it appeared to be near completion and

perhaps available for purchase. Although it is disputed whether this town-house had

a “for sale” sign posted, it is undisputed and admitted by Defendant Tupper there

were no signs, tape, nor barricade warning, preventing, or prohibiting persons from

entering upon the premises. Defendants’ own exhibit in support of the Motion For

Summary Judgment demonstrates there was signage against the exterior wall of the

house advertising Tupper Homes posted on the property. The sign included a

telephone number and contact names. The development had several homes and town-

homes under various stages of construction, many posted with “for sale” signs, as

well as many signs advertising various builders, contractors, and construction

companies in the subdivision, including Tupper Homes.

There was no concrete or paved walkway leading to the house. Instead, a

series of wooden pallets were placed on the damp ground to fashion a makeshift

walkway from the street to the garage to allow access to the home. The photograph

in evidence depicts such a wooden pallet directly in front of the Tupper Homes sign.

Because the ground was “tacky and damp” that day, Plaintiffs decided to use the

pallet walkway to get to the town-house from the street. As she walked across the

wooden pallets, Mary Perrin fell and allegedly injured her right shoulder. Plaintiffs

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sued Randy Tupper Homes d/b/a Fantasy Homes, Inc., the general contractor building

the town-house, and Employers Mutual Casualty Company (Defendants), its general

liability insurer.

The trial court granted summary judgment in favor of Defendants dismissing

the case, finding Plaintiffs entered the property without express or implied legal

consent from either the owner or the custodian of the property. The trial court ruled

from the bench and mentioned in its oral reasons for judgment Plaintiffs did not have

implied consent to be on the property and were not on the property “for making a

delivery or conducting business or communicating with the owner or custodian.”

Based on these conclusions, the trial court found Plaintiffs were trespassers in

violation of La.R.S. 14:63, despite also finding Plaintiffs had a legitimate reason to

“look at the property.” Under the provisions of La.R.S. 14:63(H)., the trial court

found Defendants were immune from suit by such trespassers and for these reasons

granted summary judgment dismissing Plaintiffs’ suit. Plaintiffs appealed alleging

the trial court committed legal error and must be reversed. We agree. The judgment

of the trial court is reversed and the case is remanded for further proceedings.

LAW AND ANALYSIS

Plaintiffs did not commit criminal trespass. The provisions of La. R.S. 14:63

(F) provide in pertinent part:

The following persons may enter or remain upon
immovable property of another, unless specifically
forbidden to do so by the owner or other person with
authority, either orally or in writing: (3) Any person
making a delivery, soliciting, selling any product or
service, conducting a survey or poll , a real estate licensee
or other person who has a legitimate reason for making
a delivery, conducting business or communicating with
the owner, lessee, custodian or a resident of the
immovable property, and who, immediately upon entry,
seeks to make the delivery, to conduct business or to
conduct the communication.(Emphasis added.)

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La. R.S. 14:63(F)(3)

Defendant Tupper admits there were no signs, warning tape, nor barricades

whatsoever on the subject property forbidding anyone to enter upon the premises.

The trial court made a factual finding that Plaintiffs had a legitimate reason to be on

the property, i.e. they were looking at the property as prospective home buyers.

Under the express provisions of La.R.S.14:63 (F)(3) Plaintiffs were “other persons”

who had a “legitimate reason” for conducting business or communicating with the

owner or a custodian of the property. Plaintiffs testified they were attracted to the

home where the accident occurred because it appeared to be the type of house they

were looking to purchase in Graywood. Defendant testified he was the sole

contractor building houses on the street where the alleged accident occurred. He also

testified there were many of his signs throughout Graywood, and on this street,

advertising Tupper Homes/Fantasy Homes. Depicted in Defendants exhibits are his

own photographs of the subject property showing a Randy Tupper Homes Design and

Construction sign. Defendant also admits some homes were for sale although this

particular home was built for identified owners.

The statute does not define “implied consent” and is not necessary that we

fashion a definition nor determine whether Mrs. Perrin had implied consent to walk

up to the house nearing completion in a developing subdivision with many newly

constructed or partially constructed homes for sale. Nevertheless, it would certainly

appear that the area was being actively marketed and was intended to invite and

attract prospective home buyers like the Plaintiffs. Be that as it may, the pertinent

provisions of La.R.S. 14:63 at paragraph F. clearly place the burden on the “owner

or other person with authority” to either post a written notice forbidding persons from

entering upon the property or to orally forbid access. Clearly, neither prohibition was

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present here. The statute further authorizes certain persons to “enter or remain” upon

immovable property of another when there is no notice forbidding entry. Plaintiffs

are included in that list of authorized persons: “Any person....who has a legitimate

reason for conducting business or communicating with the owner, lessee, custodian

or resident ...who immediately... seeks to conduct business or to conduct the

communication.” La. R.S. 14:63 (F)(3). As the trial court found, Plaintiffs obviously

had a legitimate reason for conducting business with or communicating with the

owner or custodian of the property. Plaintiffs were prospective buyers, not criminal

trespassers.

We agree with Plaintiffs that their behavior, engaged in frequently in all

developing subdivisions, was not the sort of behavior criminalized by La.R.S. 14:63.

Signs in the area were no doubt meant to attract the attention of prospective buyers

or home builders who might logically conclude that they were welcome to stop and

examine such homes in various stages of completion. It certainly could come as no

surprise to Tupper that Plaintiffs, and no doubt many others, might approach these

properties to take a closer look, get information, or attempt to make contact with or

to conduct business with any representative of the owner or custodian they might

encounter by visiting the property. No doubt, it would be disappointing indeed to

Tupper if no one showed any interest in the homes he was building in Graywood or

in his work being actively advertised through his products in Graywood.

The trial court erred as a matter of law in basing its ruling on whether Mrs.

Perrin had implied consent to be on the property, and in making this erroneous

application of law, further erred in applying the immunity provisions of La. R.S.

14:63. Because there were no signs posted on the premises forbidding entry thereon,

the Plaintiffs were permitted to enter upon the property for legitimate reasons, in this

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case for the purpose of conducting business with or communicating with the owner

or custodian of the immovable property. La.R.S. 14:63(F)(3).

Because the judgment on appeal is a summary judgment, our review is de novo,

and we employ “the same criteria that govern the trial court's consideration of

whether summary judgment is appropriate, i.e., whether there is a genuine issue of

material fact and whether the mover is entitled to judgment as a matter of law.”

Supreme Serv. & Specialty Co., Inc. v. Sonny Greer, Inc., 06-1827, p. 4 (La.5/22/07),

958 So.2d 634, 638. Under the provisions of La. Code Civ. P. art. 966, Defendants,

as movers herein, are entitled to summary judgment only if they prove (1) there are

no genuine issues of material fact in dispute and (2) they are entitled to judgment as

a matter of law. We find Defendants are not entitled to judgment as a matter of law.

Plaintiffs were not criminal trespassers as envisioned by La. R.S.14:63 and the

immunity protection Defendants affirmatively rely on as a defense does not extend

to any person whose activity falls within the exception expressly made in La.R.S.

14:63 (F)(3). The ruling of the trial court is reversed and the case is remanded for

further proceedings. All cost of appeal are assessed against Defendants.

REVERSED AND REMANDED

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NUMBER 08-1418

COURT OF APPEAL, THIRD CIRCUIT

STATE OF LOUISIANA

MARY J. PERRIN AND HUNTER PERRIN

VERSUS

RANDY TUPPER HOMES, ET AL.

AMY, J., dissenting.

I respectfully dissent from the majority opinion as I find that an affirmation is

warranted and that the circumstances of this case do not implicate La.R.S.

14:63(F)(3).

Rather, La.R.S. 14:63(A) provides that “[n]o person shall enter upon

immovable property owned by another without express, legal, or implied

authorization.” In my opinion, the mere construction of this home in a neighborhood

under development did not convey authorization for entry onto this privately owned

property. Without such authority, and absent intentional acts or gross negligence,

“owners, lessors, and custodians of structures, watercraft, movable or immovable

property shall not be answerable for damages sustained by any person who enters

upon the structure, watercraft, movable or immovable property . . . [.]” La.R.S.

14:63(H). As there was no evidence of intentional acts or gross negligence, I find

that the trial court correctly entered summary judgment.