Eric Ryan Wimberly, Et Ux. v. James Orville Blue

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

CA 08-1535

ERIC RYAN WIMBERLY, ET UX.

VERSUS

JAMES ORVILLE BLUE, ET AL.

**********

APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. C-2007-1723
HONORABLE DURWOOD WAYNE CONQUE, DISTRICT JUDGE

**********

SHANNON J. GREMILLION
JUDGE

**********

Court composed of Oswald A. Decuir, Jimmie C. Peters, and Shannon J. Gremillion,
Judges.

AFFIRMED.

Dennis Joseph Vidrine
Vidrine & Vidrine
711 West Pinhook Road
Lafayette, LA 70503
(337) 233-5195
Counsel for Plaintiffs/Appellants:
Eric Ryan Wimberly
Stameka Nakia Daigle Wimberly

Jeffrey Ackermann
Durio, McGoffin, & Stagg
P. O. Box 51308
Lafayette, LA 70505
(337) 233-0300
Counsel for Defendants/Appellees:
James Orville Blue
Earline Bourque Blue

John Stafford Irion, Jr.
Attorney at Law
P.O. Box 3412
Lafayette, LA 70502-3412
(337) 233-0505
Counsel for Defendants/Appellees:
Managing Investments, Inc.
John Raymond Johnson, Jr.

Jeremy A. Hebert
Becker & Associates
P. O. Box 52085
Lafayette, LA 70505
(337) 233-1987
Counsel for Defendant/Appellee:
Lafayette Consolidated Government

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 Wimberlys 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 redhibition. The Blues answered and

separately filed an exception of prescription. At the hearing, counsel for the

1

Wimberlys 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 Wimberleys appeal the findings

that the lot was residential immovable property and that contra non valentem did not

operate to interrupt prescription.1

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 doctrine of contra non valentem is a jurisprudential rule under which prescription
may be suspended. Carter v. Haygood, 04-646 (La. 1/19/05), 892 So.2d 1261. Louisiana has
recognized four occasions in which contra non valentem is applied:
1) where there was some legal cause that prevented the courts or their officers from
taking cognizance of or acting on the plaintiff’s action;
2) where there was some condition coupled with the contract or connected with the
proceeding that prevented the creditor from suing or action;
3) where the debtor himself has done some act to prevent the creditor from availing
himself of his cause of action; or
4) where the cause of action is not known or reasonably knowable by the plaintiff, even
though his ignorance is not induced by the defendant.
Id.

2

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

3

prescriptive period against such a seller.

The language of Article 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 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 unnecessary 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. 6

(La.11/28/00), 773 So.2d 131, 135. To apply the discovery rule to the sale of

residential or commercial immovable property, when that situation is the only one in

which the legislature did not specifically provide for its application, would render

subparagraph (2) of La.Civ. Code Article 2534 redundant. Had the legislature

intended the discovery rule to apply to this situation, it would have provided that the

prescriptive period ran from the date of discovery.

4

The distinction between residential or commercial property and other kinds of

property was the subject of our decision in Stevens v. Bruce, 04-133 (La.App. 3 Cir.

6/2/04), 878 So.2d 734. Stevens involved a claim by plaintiffs who discovered the

presence of drums of hazard waste buried on the property they purchased from the

defendants. The defendants filed exceptions of prescription and no cause of action.

The trial court held that Article 2534 applied to all immovable property and was thus

prescribed. On appeal, we held that not all property can be classified as either

residential or commercial, and that if the property at issue did not meet the definitions

of either of those terms as they are commonly understood, the prescriptive period that

applied to that non-residential or non-commercial property was one year from the

discovery of the defect.

The Wimberlys argue that “residential” only refers to property upon which

structural improvements have been built. The trial court, on the other hand, held that

the term refers to property that one intends to develop as a residence. The trial court’s

reasoning is clearly contrary to our holding in Stevens; indeed, the defendants in

Stevens had unsuccessfully posed that very argument. We do not, however, find that

in the context of this property the trial court manifestly erred in finding that this land

was residential as contemplated by Article 2534.

In support of the exception, the depositions of the Wimberlys and the Blues

were introduced. Louisiana Code of Civil Procedure Article 931 provides that

evidence may be introduced in such an instance. When evidence is so introduced, the

trial court’s findings of fact are subject to the manifest error-clearly wrong standard

of review. Carter v. Haygood, 04-0646 (La. 1/19/05), 892 So.2d 1261. Under this

standard, if the trial court’s findings are reasonable in light of the record reviewed in

5

its entirety, an appellate court may not reverse even though convinced that had it been

sitting as the trier of fact, it would have weighed the evidence differently. Stobart v.

State, through DOTD, 617 So.2d 880 (La.1993).

As we stated in Stevens, “residential” means “used as a residence or by

residents,” or “restricted to or occupied by residences,” or “of or relating to residence

or residences.” Stevens, 878 So.2d at 738. Lot 2 is located in the Fleur De Lis

Subdivision, a residential development. Houses sit directly across the street and

behind Lot 2. Further, plaintiffs had improved the lot by installing French drains and

a culvert along the entire street frontage. Viewing this evidence, we find the trial

court had more than a reasonable basis for finding that Lot 2 met the definition of

“residential,” for purposes of La.Civ.Code art. 2534. Pursuant to paragraph (A)(2)

of Article 2534, the claim is subject to a prescriptive period of one year from the date

of delivery. We affirm the trial court’s maintenance of the exception of prescription.

CONCLUSION

Civil Code Article 2534(A)(2) expressly precludes the consideration of date

of the buyer’s discovery of a defect in determining the prescriptive period in a

redhibition claim. The trial court’s finding that Lot 2 of the Fleur De Lis Subdivision

is residential property is not manifestly erroneous. As the thing sold was residential

immovable property, the applicable prescriptive period is one year from the date of

delivery. The Wimberlys’ demands against the Blues, brought three years from the

date of delivery, are prescribed. Costs of this appeal are taxed to appellants.

AFFIRMED.

6