Charles Glisan, Et Ux. v. Michael Eaton, Et Ux.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

CA 09-758

CHARLES GLISAN, ET UX.

VERSUS

MICHAEL EATON, ET UX.

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APPEAL FROM THE
NINTH JUDICIAL DISTRICT COURT
PARISH OF RAPIDES, NO. 233,854
HONORABLE GEORGE CLARENCE METOYER JR, DISTRICT JUDGE

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SHANNON J. GREMILLION
JUDGE

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Court composed of Billy Howard Ezell, J. David Painter, and Shannon J. Gremillion,
Judges.

AFFIRMED.

Ricky L. Sooter
Provosty, Sadler, deLaunay, Fiorenza & Sobel
P. O. Box 1791
Alexandria, LA 71309-1791
(318) 445-3631
Counsel for Defendants/Appellees:
Michael Eaton
Amanda Eaton

Albert Joseph Nicaud
Attorney at Law
3000 18th St.
Metairie, LA 70002
(504) 837-1304
Counsel for Defendants/Appellees:
Ralph Chance
Chance’s Inspection Services

Randall Brian Keiser
Keiser Law Firm
P.O. Box 12358
Alexandria, LA 71315-2394
(318) 443-6168
Counsel for Defendants/Appellees:
Ralph Riggs
Key Realty

Joel Boussert
Crowell & Owens
P. O. Box 330
Alexandria, LA 71309
(318) 445-1488
Counsel for Plaintiffs/Appellants:
Charles Glisan
Amy Glisan

GREMILLION, Judge.

Charles and Amy Glisan, appellants, appeal the judgment of the trial court

maintaining the exception of prescription in favor of Ralph R. Chance, d/b/a Chance’s

Inspection Services (Chance). For the reasons that follow, we affirm.

FACTS

The Glisans purchased a home in Rapides Parish on June 1, 2007, from

Michael and Amanda Eaton. Prior to the sale, the Glisans enlisted Chance to perform

an inspection of the home, which was accomplished on May 5, 2007. Chance noted

some roofing issues that needed addressing, and met with a roofing contractor and the

Glisans on May 9, 2007, at the property. He delivered his report to the Glisans on

May 10, 2007.

On May 30, 2008, the Glisans filed suit in Pineville City Court in redhibition

against the Eatons, seeking quanti minoris relief.1 They alleged that in the spring of

2008, they conducted an inspection of the property that revealed that the foundation

of the home had cracked and/or unevenly settled. In December 2008, the Glisans

filed a motion to have the case transferred to the Ninth Judicial District Court on the

belief that the matter would exceed Pineville City Court’s jurisdictional limit. In

January 2009, the Glisans amended their petition to add Chance, realtor Ralph Riggs,

and Riggs’ employer, Key Realty, LLC.

Chance responded to the suit with an exception of prescription. This exception

asserted that pursuant to the terms of La.R.S. 9:5608, the Glisans had one year from

the date of the alleged act or omission of a home inspector to file suit. Because the

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Quanti minoris is a reduction in the purchase price based upon the existence at the time of
sale of a hidden defect not susceptible of discovery by simple inspection on the buyer’s part. La.Civ.
Code art. 2541.

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Glisans did not allege that Chance was a joint tortfeasor, the amendment of the

petition does not relate back to the filing of the original petition; therefore, according

to Chance, the suit against him was not timely instituted.

The Glisans’ opposition was based upon the doctrine of contra non valentem,

and specifically on what is known as the “discovery rule,” under which jurisprudence

of this State has held that prescription does not begin to toll against a plaintiff whose

cause of action is not known or reasonably knowable, even though the defendant did

nothing to induce the plaintiff’s ignorance.

ANALYSIS

Prescription of actions against home inspectors is governed by La.R.S. 9:5608,

which reads:

A. No action for damages against any home inspector duly
licensed under the laws of this state or against any home inspection
company, whether based in tort, breach of contract, or otherwise, arising
out of a home inspection or report performed or prepared by the home
inspector shall be brought unless filed in a court of competent
jurisdiction and proper venue within one year from the date the act,
omission, or neglect is alleged to have occurred.

B. The prescriptive period provided in Subsection A of this
Section shall not apply in cases of fraud, as defined in Civil Code
Article 1953.

C. The prescriptive period provided in Subsection A of this
Section shall not apply to any proceedings initiated by the Louisiana
State Board of Home Inspectors.

D. The provisions of this Section shall not apply to the inspection
of new homes which are subject to the provisions of R.S. 9:3141 et seq.

This statute sets forth a prescriptive, rather than a peremptive, period, as clearly stated

in sections (B) and (C). There are two distinctions between prescription and

peremption: (1) the tolling of peremption extinguishes the right sought to be

exercised, whereas prescription merely limits the time within which one may exercise

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the right; and (2) peremption is not subject to renunciation, suspension or

interruption, while prescription may be renounced, suspended or interrupted.

La.Civ.Code arts. 3458 and 3461; Naghi v. Brener, 08-2527 (La. 6/26/09), 17 So.3d

919; Yen v. Avoyelles Parish Police Jury, 07-225 (La.App. 3 Cir. 3/4/09), 5 So.3d

1002, writ denied, 09-1098 (La. 9/4/09), 17 So.3d 964. Indeed, the effect of La.Code

Civ.P. art. 1153, allowing an amendment to relate back to the date of original filing,

does not affect a peremptive period. Naghi, 17 So.3d 919.

Chance argues that the language of the statute clearly expresses the

legislature’s intent to limit suits against home inspectors to one year from the date of

the alleged act, omission or neglect without the suspensive effect of contra non

valentem. Specifically, he points to the statute’s absence of language allowing

suspension pending discovery. A comparison of the statute with other provisions

governing prescription is helpful in discerning whether this position is correct.

Louisiana Civil Code article 3492 reads:

Delictual actions are subject to a liberative prescription of one
year. This prescription commences to run from the day injury or damage
is sustained. It does not run against minors or interdicts in actions
involving permanent disability and brought pursuant to the Louisiana
Products Liability Act or state law governing product liability actions in
effect at the time of the injury or damage.

Article 3492 does not reference discovery as triggering or suspending the tolling of

prescription in tort actions. However, as this court has previously noted in construing

article 3492:

Damage is sustained, within the meaning of prescription, only when it
has manifested itself with sufficient certainty to support the accrual of
a cause of action. Cole v. Celotex Corporation, 620 So.2d 1154
(La.1993). The damages suffered must at least be actual and appreciable
in quality. Where a claimant has suffered some but not all damages,
prescription runs from the day on which he suffered actual and
appreciable damages even though he may thereafter realize more precise

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damages. Harvey v. Dixie Graphics, Inc., 593 So.2d 351 (La.1992).
However, prescription will not commence at the earliest possible
indication that plaintiff may have suffered some wrong. It will begin to
run when plaintiff has a reasonable basis to pursue a claim against a
specific defendant. Jordan v. Employee Transfer Corporation, 509
So.2d 420 (La.1987). Prescription should not be used to force a potential
plaintiff who believes that he may have a cause of action to rush to the
courthouse to file suit against all parties that may have caused the
damage. Miley v. Consolidated Gravity Drainage District No. 1, 93-
1321 (La.App. 1st Cir. 9/12/94); 642 So.2d 693.

Labbe Serv. Garage Inc. v. LBM Distribs., Inc., 94-1043, p. 11 (La.App. 3 Cir.

2/1/95), 650 So.2d 824, 829. There is a clear distinction between the statute at issue

and article 3492. Prescription does not commence under article 3492 until the date

damages are sustained, and that date is determined according to when the damages

are discovered. That date could be the date of the tort, but it could be much, much

later.

The legislature has acted to limit the application of contra non valentem in

other circumstances. Recently, we determined that, in the context of redhibitory

actions against good faith sellers of residential property, contra non valentem did not

suspend the running of prescription against purchasers who did not learn of a flood

zone designation that prevented them from building on the property. Wimberly v.

Blue, 08-1535 (La.App. 3 Cir. 5/6/09), 11 So.3d 560. Civil Code article 2534

provides that the discovery rule suspends prescription against a bad faith seller, but

does not suspend prescription against a good faith seller of residential or commercial

immovables. The absence of reference to the date of discovery in the good faith seller

situation precluded the application of contra non valentem.

Chance argues that the absence of reference to the date of discovery indicates

that the legislature intended to limit actions to one year from the date of the alleged

act or omission on the home inspector’s part. We find that, because the statute

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mandates that the triggering mechanism for the tolling of prescription is the date the

act, omission or neglect is alleged to have occurred, the legislature intended to limit

the prescriptive period in such a way as to preclude the operation of the discovery

rule. Had the legislature intended for the discovery rule to apply, it could have

worded the statute in the manner it did article 3492.

CONCLUSION

Louisiana Revised Statute 9:5608 establishes a one-year prescriptive period for

actions against home inspectors. The wording of the statute persuades us that the

legislature intended to limit that period in such a manner as to preclude the

application of the discovery rule. The ruling of the trial court is affirmed. Costs of

this appeal are taxed to Plaintiffs/Appellees, Charles and Amy Glisan.

AFFIRMED.

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