Emile Mouton v. Generac Power Systems, Inc.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

14-350

EMILE MOUTON

VERSUS

GENERAC POWER SYSTEMS, INC., ET AL.

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. 2012-2312
HONORABLE EDWARD D. RUBIN, DISTRICT JUDGE

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PHYLLIS M. KEATY
JUDGE

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Court composed of Elizabeth A. Pickett, James T. Genovese, and Phyllis M. Keaty,
Judges.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

Matthew D. McConnell
McConnell Law Offices
Post Office Box 52024
Lafayette, Louisiana 70505-2024
(337) 347-6404
Counsel for Plaintiff/Appellant:
Emile Mouton

Ronald J. White
Murphy, Rogers, Sloss & Gambel
701 Poydras Street, Suite 400
New Orleans, Louisiana 70139
(504) 523-0400
Counsel for Defendant/Appellee:
Generac Power Systems, Inc.

Cearley W. Fontenot
Oats & Marino
100 East Vermilion Street, Suite 400
Lafayette, Louisiana 70501
(337) 233-1100
Counsel for Defendant/Appellee:
Metro Electric & Maintenance, Inc.

KEATY, Judge.

Plaintiff appeals from the trial court’s judgment granting Defendants’

exceptions of prescription. For the following reasons, the trial court’s judgment is

affirmed in part, reversed in part, and remanded.

FACTS AND PROCEDURAL BACKGROUND

On or about August 29, 2006, Plaintiff, Emile Mouton, purchased a

residential generator from, and which was subsequently installed by, Metro

Electric & Maintenance, Inc. The generator was manufactured by Generac Power

Systems, Inc. Mouton also purchased an equipment maintenance contract from

Metro Electric that became effective on September 5, 2006. Pursuant to this

maintenance contract, Metro Electric was obligated to service the generator twice a

year. Mouton continued purchasing this maintenance contract annually through

July of 2011, and it expired in July of 2012.

Mouton contends that during this six-year period from 2006 to 2012, the

generator failed to perform properly and/or required repair service every year. On

April 23, 2012, Mouton filed suit against Defendants for the following: “A.

Redhibition/Rescission; B. Breach of Contract and/or Implied and/or Express

Warranties; C. Negligent Installation, Maintenance, and/or Repair.” Mouton seeks

reimbursement of the purchase price of the generator along with maintenance and

repair costs. Mouton requests attorney fees, non-pecuniary damages, court costs,

and legal interest.

Defendants filed answers which included affirmative defenses and

peremptory exceptions. In its answer, Metro Electric filed a cross-claim adverse to

Generac as the manufacturer. Mouton subsequently answered written discovery

and supplied Defendants with his expert’s report. Prior to Defendants’ experts’

inspection of the generator, each Defendant filed exceptions of prescription,

alleging that Mouton’s suit had prescribed under Louisiana redhibition law

pursuant to La.Civ.Code art. 2520.1 Metro Electric further asserted that Mouton

had no right of action for negligent installation pursuant to La.Civ.Code art. 2520.

Mouton subsequently filed a motion to continue the hearing on the

peremptory exceptions which were scheduled for June 24, 2013. Since Generac’s

expert inspected the generator on May 15, 2013, Mouton alleged that the extra time

would allow him to propound written discovery and obtain depositions from

Generac’s expert on prescriptive issues. The motion to continue was denied. After

the hearing, the trial court granted all of Defendants’ exceptions without reasons,

dismissing the entire lawsuit against both Defendants.

Mouton then filed a motion for new trial and/or to amend judgment seeking

to reverse the trial court’s judgment on grounds of prescription and alternatively

seeking to amend the judgment to reinstate the breach of service contract and

negligent maintenance and repair claims. The trial court denied the motion, and

Mouton appealed.

On appeal, Mouton asserts the following six assignments of error:

1
Louisiana Civil Code Article 2520 provides:

The seller warrants the buyer against redhibitory defects, or vices, in the
thing sold.

A defect is redhibitory when it 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. The existence of such a defect gives a buyer
the right to obtain rescission of the sale.

A defect is redhibitory also when, without rendering the thing totally
useless, it diminishes its usefulness or its value so that it must be presumed that a
buyer would still have bought it but for a lesser price. The existence of such a
defect limits the right of a buyer to a reduction of the price.

2

(1) the trial court manifestly erred in granting Defendants’
exceptions of prescription regarding his redhibitory and
negligent installation claims;

(2) the trial court manifestly erred in relying on facts alleged by
Defendants although not proven by sworn affidavits or
testimony;

(3) the trial court manifestly erred in granting Defendants’
exceptions via summary judgment where Mouton presented
material issues of fact;

(4) the trial court manifestly erred by making impermissible
credibility determinations;

(5) the trial court manifestly erred by denying Mouton time to
conduct adequate discovery before it heard Defendants’
exceptions of prescription; and

(6) the trial court manifestly and legally erred by dismissing the
entire lawsuit even though Defendants’ exceptions challenged
only a couple of Mouton’s alternative legal theories of liability.

STANDARD OF REVIEW

At the outset, we note that evidence was submitted at the hearing on the

exceptions. In that regard, Louisiana jurisprudence provides for the following

standard of review:

If evidence is introduced at the hearing on the peremptory exception
of prescription, the district court’s findings of fact are reviewed under
the manifest error-clearly wrong standard of review. Stobart v. State,
through DOTD, 617 So.2d 880, 882 (La.1993). If the findings are
reasonable in light of the record reviewed in 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. Id.,
617 So.2d at 882-83.

Menard v. Iberia Parish Sheriff’s Office, 11-707, p. 2 (La.App. 3 Cir. 12/7/11), 77

So.3d 1090, 1092 (quoting Rando v. Anco Insulations, Inc., 08-1163, p. 20 (La.

5/22/09), 16 So.3d 1065, 1082), writ denied, 12-73 (La. 3/9/12), 84 So.3d 553.

Thus, we will review the trial court’s findings of fact utilizing the manifest error—

clearly wrong standard of review.

3

DISCUSSION

I. Prescription as to Redhibition and Negligent Installation

A. Redhibition

In Louisiana, prescription in a redhibition claim is codified at La.Civ.Code

art. 2534 which provides:

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.

....

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.

Comment (b) under La.Civ.Code art. 2534 further provides that “[u]nder this

Article, an action in redhibition prescribes ten years from the time of perfection of

the contract regardless of whether the seller was in good or bad faith. See C.C. Art.

3499.”2

In his first assignment of error, Mouton contends that the trial court

manifestly erred in granting Defendants’ exceptions regarding his redhibitory

claim. Mouton states that the ten-year prescriptive period as stated in Comment (b)

is applicable. Since the petition was filed on April 23, 2012, which was less than

2
Louisiana Civil Code Article 3499 provides that “[u]nless otherwise provided by
legislation, a personal action is subject to a liberative prescription of ten years.”

4

six years after the generator was purchased, Mouton contends that it has not

prescribed on its face as to his redhibition claim.

In opposition, Defendants contend that the ten-year prescriptive period is

inapplicable. Metro Electric contends that the four-year or one-year prescriptive

period is applicable pursuant to La.Civ.Code art. 2534(A)(1). As a manufacturer,

Generac contends that only the one-year prescriptive period, as opposed to the

four-year prescriptive period, applies to it pursuant to La.Civ.Code art. 2534(B).3

Metro Electric further states that Mouton’s reliance on Comment (b) is misplaced.

In support of its argument that Mouton’s reliance on Comment (b) is

misplaced, Metro Electric cites the Louisiana federal court case of Tiger Bend,

L.L.C. v. Temple-Inland, Inc., 56 F.Supp. 2d 686 (M.D. La. 1999). In Tiger Bend,

56 F.Supp. 2d at 690, the court analyzed Comment (b) as follows:

[O]fficial comment (b) of article 2534 explains that this article does
not allow an unlimited time period to discover a defect. The comment
points to La.Civ.Code Art. 3499 as the maximum time limit in which
a party can bring a claim for redhibition. The comment states that
“[u]nder this article [2534], an action in redhibition prescribes ten
years from the time of perfection of the contract regardless of whether
the seller was in good or bad faith.” Article 3499, which is referenced
in article 2534 comment (b), explains that “[u]nless otherwise
provided by legislation, a personal action is subject to a liberative
prescription of ten years.”

Metro Electric states that Comment (b) simply explains that there is not an

unlimited time to discover a defect and refers to La.Civ.Code art. 3499 as the

maximum time limit for a party to bring a redhibitory action. Metro Electric

3
According to Goodman v. Roberts, 587 So.2d 807 (La.App. 3 Cir. 1991), a
manufacturer is presumed to know of the defect in its product. As such, prescription commences
to run against the manufacturer one year after discovery of the defect by the consumer. Id. This
presumption is codified in La.Civ.Code art. 2545.

5

contends that Comment (b) provides an absolute deadline of ten years for

prescription of a redhibitory claim in conjunction with the discovery of a defect.4

We agree with Metro Electric in that Mouton’s reliance on Comment (b) is

misplaced. As cited by Generac, Cunard Line Ltd. Co. v. Datrex, Inc., 05-1171, p.

7 (La.App. 3 Cir. 4/5/06), 926 So.2d 109, 114, provides that when a cause of action

is based on a defect, “it is limited to the prescriptive period for redhibitory defects

and may not avail itself of the ten-year prescriptive period for conventional

obligations.” Since the petition alleges that the generator “began to show signs

that it was defective” and that the generator “has proven defective for purposes of

Louisiana redhibition law,” it is clear that Mouton’s cause of action lies in

redhibitory law. As such, the ten-year prescription period is inapplicable, and we

must review the petition to determine whether Mouton’s cause of action prescribed

within the four-year or one-year period provided for in La.Civ.Code art. 2534(A)(1)

and La.Civ.Code art. 2534(B).

Normally, “[t]he party pleading prescription has the burden of proof.” Ins.

Storage Pool, Inc. v. Parish Nat’l Bank, 97-2757, p. 7 (La.App. 1 Cir. 5/14/99),

732 So.2d 815, 820. “If on the face of the petition it appears prescription has run,

however, the burden shifts to the plaintiff to prove a suspension or interruption of

the prescriptive period.” Reno v. Perkins Engines, Inc., 98-1686, p. 2 (La.App. 1

Cir. 9/24/99), 754 So.2d 1032, 1034 (footnote/citation omitted), writ denied, 99-

3058 (La. 1/7/00), 752 So.2d 863. Thus, we will review the petition to see if

prescription has run on its face.

4
The federal court in Tiger Bend, stated that La.Civ.Code art. 3499 is not a preemptive
provision but rather a prescriptive provision. As such, it is subject to suspension and interruption.
The court explained that under La.Civ.Code art. 2534, “the running of prescription depends on
the plaintiff’s knowledge of the cause of action, i.e., discovery of the defect.” Id. at 691.

6

In his petition, Mouton states that the sale of the generator took place on

August 29, 2006. Mouton alleges that soon after installation, the generator “began

to show signs that it was defective.” Mouton contends that “[w]ithin the first year

that it was placed in service METRO ELECTRIC personnel reported that the

cooler filler cap and the starter required replacement/repair.” Mouton alleges that

“[i]n August and September 2008, the Standby Generator failed to provide

automatic substitute electrical power when the utility service was interrupted

during Hurricanes Gustav and Ike, respectively.” Mouton contends that the

generator “has failed to function properly and/or required repair service every year,

up to and including 2012, since it was purchased and installed.”

Metro Electric’s job tickets and Generac’s warranty claims, which are

contained in the record, support Mouton’s allegation in his petition that the

generator required repairs in 2006 and 2007 for a radiator cap and a starter.

Defendants’ records, however, fail to show that repairs were performed after 2007.

In his discovery responses, which are contained in the record, Mouton was unable

to provide evidence showing that the generator required repair after 2007.

Thus, November 11, 20075 was the date of the last repair that occurred on

the machine.6 The four-year prescriptive period began to run on November 11,

2007 and prescribed on November 11, 2011. Mouton filed suit on April 23, 2012.

Based on the face of the petition, the four-year prescriptive period had run. The

5
Generac’s records show that November 11, 2007 was the date that the starter was
replaced.
6
Although Mouton did not specifically state that November 11, 2007 was when the
generator was repaired, his petition states that “[w]ithin the first year that it was placed in service
METRO ELECTRIC personnel reported that the cooler filler cap and the starter required
replacement/repair.” Since Mouton’s petition states that it was purchased in 2006, 2007 would
be “within the first year that it was placed in service.”

7

burden, therefore, shifted to Mouton to prove a suspension or interruption of the

prescriptive period.

In that regard, Mouton contends in his appellate brief that prescription was

interrupted annually from 2006 through 2012 when Metro Electric performed

maintenance and service on the generator pursuant to the maintenance contract.

Mouton alleges that prescription began anew every year when Metro Electric

tendered the generator back to Mouton. We disagree.

The annual maintenance contracts which are contained in the record as

exhibits show that Metro Electric serviced the generator twice a year. This

included a complete check-up of the operation of the equipment. Metro Electric

also inspected the following: fuel lines for wear, cracks, and leaks; exhaust system

for safety and leaks; exhaust lines, muffler for cracks and leaks; drain moisture

from condensation traps; air shrouds for leaks and security; clean cooling fins;

check electrical wire for fray and connections; fuel filter, battery water, gravity of

cells and connections; generator brushes and bearings; alternator for charging;

control box wiring, voltage frequency settings; transfer switch for proper settings

and operation; includes if needed: spark plugs, points, and condenser; and replace

oil, oil filter, and air filter twice a year.

Metro Electric’s job tickets which are also contained in the record show the

notes taken during the regularly-scheduled maintenance performed after

November 11, 2007. Specifically, no problems were reported on April 9, 2008.

On March 18, 2009, a latch on the machine was broken. A broken latch does not

interfere, however, with the operation of the generator. On September 16, 2009,

the broken latch was replaced. On April 14, 2010, no problems were noted. On

May 21, 2011, and October 29, 2011, the generator was noted to be in good

8

condition. During Metro Electric’s final maintenance of the generator on July 13,

2012, it was noted that the generator “[c]ranked [r]ight up.” The foregoing shows

that the generator did not fail during the regularly-scheduled testing. In his petition

and discovery responses, Mouton also stated that the generator “usually performed

appropriately for regular-scheduled testing.”

Keeping in mind the annual tests, we point to Williams v. Ford Motor Co.,

307 So.2d 159 (La.App. 1 Cir. 1974), writ denied, 309 So.2d 684 (La.1975), a first

circuit case cited by Defendants wherein the plaintiff brought a redhibitory action

against the manufacturer and dealer to rescind the sale of a car. The trial court

dismissed the action, and the plaintiff appealed. The appellate court affirmed the

trial court’s judgment and held that “[i]t is well settled in our jurisprudence that

where the seller attempts to remedy a defect in the object sold, the one year

prescription in bringing the redhibitory action begins to run only from the time the

seller abandons his attempt to repair the defect.” Id. at 160. The appellate court

stated:

Based upon the facts presented we sustain the judgment of the
trial court. Plaintiff shows that she returned her automobile to
Richard’s Ford Company, Inc. on October 27, 1972, and complained
about excessive oil consumption and a defective speedometer. The
speedometer was repaired and the engine was filled with oil. No work
was performed on the engine to correct the excessive use of oil.
Plaintiff was billed for this service but she testifies that she never paid
this bill. Plaintiff next returned her automobile to the defendant on
February 22, 1973, for a State Safety Inspection and her horn was
repaired at this time for inspection purposes for which she was billed
and for which she paid. Subsequently plaintiff had her automobile
serviced and repaired at establishments other than that of the
defendant.

At the time that this suit was filed more than one year had
elapsed since the last time the defendant may be presumed to have
made an attempt to remedy the defects of which plaintiff complained.
The running of prescription was not interrupted on February 22, 1973,
when the horn was repaired for the purposes of safety inspection.

9

Id. (emphasis added).

Similar to the safety inspection in Williams, the generator in the present case

was inspected and serviced by Metro Electric twice a year pursuant to the

maintenance contract. Just as the court in Williams found that the repair of the

horn did not address the defects complained of in the plaintiff’s petition, the annual

maintenance performed on the generator in the present case, which Mouton

admitted was successful, did not address the defects complained of in his petition.

Thus, the annual inspections in the present case did not interrupt prescription as per

Williams. For the same reasons cited in Williams, the broken latch Mouton

complained of, and which was repaired in 2009, also failed to interrupt prescription.

We further find that Mouton’s claim prescribed pursuant to the one-year

prescriptive period provided for in La.Civ.Code art. 2534(A)(1) and La.Civ.Code

art. 2534(B). In that regard, “prescription begins to run when the defect manifests

itself, not on the date the underlying cause of the defect is found.” Am. Zurich Ins.

Co. v. Caterpillar, Inc., 12-270, p. 3 (La.App. 3 Cir. 10/3/12), 99 So.3d 739, 741.

Mouton provided supplemental discovery responses which are contained in the

record wherein he lists the following dates that his generator failed to work during

power outages: September 27, 2006; December 13, 2006; July 1, 2007; March 6,

2008; August 7, 2010; November 26, 2010; December 27, 2010; January 31, 2012;

February 26, 2012; August 19, 2012; and October 5, 2012. Since the last repair

occurred on November 11, 2007, the next time Mouton experienced a power

outage following the last repair was on March 6, 2008. At this point, Mouton

should have known that the generator did not work despite the repairs. He also

10

should have known that he had one year to assert a redhibitory action, i.e., until

March 6, 2009.

Mouton’s supplemental discovery responses further indicated that there were

no power outages in 2009. As mentioned above, the generator worked for the

annual maintenance which occurred during 2009. Mouton contends that his

generator failed to work on August 7, 2010, November 26, 2010, and December 27,

2010. Even if Mouton had no knowledge of a defect in the years prior to 2010, he

should have known of a defect following these three power outages in the latter

part of 2010. He should have discovered a defect by December 27, 2010. At that

point, the one-year prescriptive period began to run at which time Mouton had

until December 27, 2011, to assert a claim for redhibition. Suit was not filed until

over one year later on April 23, 2012, and, thus, was untimely. Similarly, Metro

Electric’s subsequent repair to the generator in February 2012 did not interrupt

prescription since prescription had already run on December 27, 2011.

Thus, any claim for redhibition utilizing the four-year prescriptive period or

one-year prescriptive period prescribed by April 23, 2012. Accordingly, the trial

court was not manifestly erroneous in granting Defendants’ exceptions of

prescription.

B. Negligent Installation

Mouton further contends that the trial court manifestly erred in granting

Metro Electric’s peremptory exception on his negligent installation claim. Mouton

alleges that his negligent installation claim is timely pursuant to the ten-year

prescriptive period provided for in La.Civ.Code art. 3499.7 In opposition, Metro

7
Louisiana Civil Code Article 3499 provides, “[u]nless otherwise provided by legislation,
a personal action is subject to a liberative prescription of ten years.”

11

Electric cites Sharpe v. Claiborne Enterprises, Inc., 461 So.2d 591 (La.App. 1 Cir.

1984), writ denied, (La.1985), 464 So.2d 302, in support of its argument that

Mouton’s suit prescribed. Metro Electric contends that the one-year prescriptive

period governing redhibitory defects is applicable rather than the ten-year

prescriptive period governing breach or negligent execution of an installation

contract.

In Sharpe, a purchaser of automobile wheels brought suit against the seller

for injuries sustained in an automobile accident. Believing that the one-year

prescriptive period was applicable rather than the ten-year prescriptive period, the

trial court granted a peremptory exception in favor of the defendant. On appeal,

the issue was which prescriptive period applied.

Notably, the plaintiffs alleged that when they purchased the wheels from the

defendant, the sales contract was both a contract to sell and a contract to install the

wheels on the vehicle. The plaintiffs contended that the defendant’s negligence in

improperly installing the wheels constituted a negligent breach of the installation

contract which gave rise to a breach of contract claim for personal injury damages.

In opposition, the defendants argued that any contractual liability was governed by

the sales articles on redhibition because the principal obligation of the contract was

that of sale.

The appellate court in Sharpe noted that in reviewing prior cases regarding

the characterization of sales and service contracts, the principal obligation of the

contract determines its characterization. In affirming the trial court’s judgment, the

appellate court held:

We are not convinced by the allegations of plaintiffs’ petition
that Claiborne entered into an installation contract with Mr. Sharpe.
The principal obligation of the contract was the sale of the mag

12

wheels. The fact that Claiborne undertook to install them on the truck
incidental to the sale does not change the transaction from that of a
sales contract to an installation contract. “The mere fact that an
obligor may be involved in the installation and delivery of the
equipment will not change the characterization of the obligation from
that of a sales contract and therefore the rules governing a sale will
control.”

Id. at 593 (citations omitted).

Similar to the facts in Sharpe, the generator in the present case was

purchased on or about August 29, 2006. Thus, the principal obligation of the

contract was the sale of the generator. The fact that Metro Electric installed it at

Mouton’s residence in addition to the sale does not change the transaction from

that of a sales contract to an installation contract. Accordingly, the one-year

prescriptive period governing redhibitory defects governs. Given the applicability

of the one-year prescriptive period, Mouton’s suit for negligent installation has

prescribed pursuant to our reasoning above. Accordingly, the trial court was not

manifestly erroneous in granting Defendants’ exceptions with respect to his

negligent installation claim.

II. Necessity of Sworn Affidavits or Testimony

In his second assignment of error, Mouton alleges that the trial court was

manifestly erroneous in relying on Defendants’ alleged facts which were not

proven through sworn affidavits or testimony. Evidence introduced by Defendants

was in the form of Metro Electric equipment maintenance contracts, the petition,

warranty claims submitted to Generac for the two repairs required in 2006 and

2007, and the maintenance records. According to the trial transcript, Mouton did

not object to the inclusion of the documents into the record. Rather, he adopted the

exhibits as his at the hearing.

13

Louisiana Code of Civil Procedure Article 931 provides, in pertinent part:

“On the trial of the peremptory exception pleaded at or prior to the trial of the case,

evidence may be introduced to support or controvert any of the objections pleaded,

when the grounds thereof do not appear from the petition.” While the statute

indicates that evidence may be introduced, it fails to state that such evidence must

be in the form of sworn affidavits or testimony. Mouton, likewise, has failed to

cite any authority in support of his position. On the other hand, Generac correctly

cites Boneno v. Lasseigne, 514 So.2d 276, 279 (La.App. 5 Cir. 1987), wherein the

court held that a sworn affidavit is hearsay and there is “no such statutory

exception permitting the use of affidavits in a trial of a peremptory exception of

prescription.” Since there is no requirement that sworn affidavits or testimony

must be utilized and since Louisiana jurisprudence directly conflicts with

Mouton’s allegation, the trial court was not manifestly erroneous in relying on

Defendants’ evidence even though it was not in the form of sworn affidavits or

testimony.

III. Contra Non Valentum

Mouton also asserts that the doctrine of contra non valentum suspends

prescription. The right to assert this doctrine, according to Mouton, arises from the

generator inspection wherein defects were revealed. Mouton further asserts that

this right also stems from modification and repair attempts after installation which

concealed problems.

Louisiana jurisprudence recognizes contra non valentem as a way to suspend

prescription when the circumstances fall into one of the four following categories:

(1) where there was some legal cause which 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

14

or connected with the proceedings which prevented the creditor from
suing or acting; (3) where the debtor himself has done some act
effectually to prevent the creditor from availing himself of his cause
of action; and (4) where the cause of action is not known or
reasonably knowable by the plaintiff, even though this ignorance is
not induced by the defendant.

Wells v. Zadeck, 11-1232, pp. 8-9 (La. 3/30/12), 89 So.3d 1145, 1150.

Our review of the petition shows that Mouton alleges that the generator

never properly worked and was defective from the time it was purchased in 2006.

The contra non valentum defense Mouton asserts, however, is based on the alleged

concealment of the defect. Concealment of a defect directly contradicts Mouton’s

redhibition claim. Thus, Mouton’s contra non valentum defense fails.

IV. Material Issues of Fact

In his third assignment of error, Mouton contends that the trial court

manifestly erred in granting Defendants’ exceptions by summary judgment where

he presented material issues of fact.

Our review of the record shows that the exceptions were peremptory

exceptions of prescription. As previously discussed, there is no requirement for

the submission of sworn affidavits or testimony “[o]n the trial of the peremptory

exception.” La.Code Civ.P. art. 931. Since the matter before the trial court was

not on summary judgment which is tried utilizing affidavit testimony, Mouton’s

assignment of error is without merit. Accordingly, the trial court was not

manifestly erroneous in this regard.

V. Credibility Determinations

In his fourth assignment of error, Mouton contends that the trial court

manifestly erred by making impermissible credibility determinations. Mouton

alleges that since he submitted sworn affidavit testimony creating a material issue

15

of fact, the trial court made an impermissible credibility determination whereby it

favored Defendants’ evidence as opposed to his affidavit. In support, Mouton cites

Independent Fire Insurance Co. v. Sunbeam Corp., 99-2181, 99-2257, p. 4 (La.

2/29/00), 755 So.2d 226, 236, for the proposition that “the trial judge cannot make

credibility determinations on a motion for summary judgment.”

As previously mentioned, this was not a summary judgment hearing wherein

the outcome depends on affidavit testimony. Accordingly, Mouton’s assignment

of error is without merit, and the trial court was not manifestly erroneous in this

regard.

VI. Adequate Discovery

In his fifth assignment of error, Mouton contends that the trial court

manifestly erred when it denied him time to conduct adequate discovery before

hearing Defendants’ exceptions of prescription.

Our review of Defendants’ exceptions shows that they were based on the

time the lawsuit was filed and on Mouton’s discovery responses. As indicated

above, the lawsuit is prescribed on its face. Since the filing of the lawsuit occurred

on April 24, 2012, and in addition to the reasons explained above, December 27,

2011, was the latest date that the lawsuit could have been filed. Mouton had

enough time to conduct discovery. According to Mouton’s expert’s report,8 which

is contained in the record, his expert inspected the generator in September 2012.

Since this inspection occurred nine months prior to the June 24, 2013 hearing on

the exceptions, Mouton had that time, i.e., nine months, to conduct discovery of an

alleged concealment of a defect. Accordingly, Mouton’s assignment of error is

without merit, and the trial court was not manifestly erroneous in this regard.

8
Mouton’s expert is Joey Meloz.

16

VII. Alternative Legal Theories of Liability

In his sixth assignment of error, Mouton contends that the trial court

manifestly and legally erred by dismissing the entire lawsuit even though

Defendants’ exceptions challenged only a couple of his alternative theories of

liability. Mouton filed suit against Defendants for redhibition, negligent

installation, breach of contract, negligent maintenance, and negligent repair.

Mouton asserts that his redhibitory and negligent installation claims were the only

two claims challenged in Defendants’ exceptions.9 Since Defendants’ exceptions

failed to challenge his breach of contract, negligent maintenance, and negligent

repair claims, Mouton contends that the trial court was manifestly erroneous in

dismissing these claims.

In its peremptory exception of prescription, Metro Electric excepted to

Mouton’s lawsuit on the grounds that it “has prescribed and that [Mouton] has no

right of action in Redhibition or negligent installation pursuant to La. C.C. art.

2520, et seq.” Metro Electric challenged only Mouton’s redhibition and negligent

installation claims.

In its peremptory exception of prescription, Generac excepted to Mouton’s

lawsuit “on the grounds that [Mouton’s] claims . . . against Generac under

Louisiana redhibition law, La. Civ. Code art. 2520, et seq., are prescribed.” Thus,

Generac challenged only Mouton’s redhibition claim.

In order to succeed on a breach of contract claim, the plaintiff must prove

the existence of a contract, a breach of that contract, and damages. See Ledet v.

Campo, 12-1193 (La.App. 3 Cir. 3/16/13), 128 So.3d 1034. In his petition,

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Mouton contends that Metro Electric challenged his redhibition and negligent
installation claims whereas Generac challenged only his redhibition claim.

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Mouton alleged that he “has annually purchased from METRO ELECTRIC an

Equipment Maintenance Contract to maintain” the generator. According to

Mouton, the generator “failed to function properly and/or required repair service

every year, up to and including 2012” and each time he reported problems, Metro

Electric “responded by purportedly servicing the [generator] and representing that

the problem was taken care of and that [it] would function appropriately ‘next

time.’” Mouton alleged that, despite Metro Electric’s “repeated annual

assurances,” the generator would “provide automatic substitute electrical service,”

it “NEVER provided automatic substitute electrical service in the event of an

actual interruption in electrical-utility service.” Although Metro Electric

supposedly “fixed” a problem in February of 2012, Mouton “recall[ed] that the

alleged problem on the occasion of that service was one that previously had

reportedly been fixed already.” Based on the foregoing allegations, Mouton

contended that Defendants were liable to him for “Breach of Contract and/or

Implied and/or Express Warranties” along with “Negligent Installation,

Maintenance, and/or Repair.” In his prayer for relief, Mouton seeks actual,

consequential, and incidental damages; rescission, including reimbursement of the

purchase price along with maintenance and repair costs; attorney fees; court costs;

and legal interest.

Upon review of Mouton’s petition and accepting his well-pleaded

allegations as true, we find that he sufficiently pled that a contract existed between

he and Metro Electric. Mouton alleged that Metro Electric, in failing to comply

with the requirements provided for in the maintenance contract, breached the

contract between the parties and that, as a result of its breach, Mouton suffered

damages. Mouton has likewise asserted a claim for negligent maintenance and

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negligent repair since both arise out of Metro Electric’s alleged breach of the

maintenance contract.

In determining whether Mouton’s contractual claims have prescribed against

Metro Electric, the maintenance contract must be viewed separately from the sale

and installation contract. The principal obligation of the maintenance contract,

which was annually renewed, was that of maintaining the generator. Mouton

signed the final maintenance contract in July of 2011. A breach of contract claim

“is subject to a liberative prescription of ten-years.” La.Civ.Code art. 3499. Based

upon the face of the petition, Mouton’s claims for breach of contract, negligent

maintenance, and negligent repair were timely filed and have not prescribed.

Accordingly, the trial court was manifestly erroneous in dismissing Mouton’s

contractual claims against Metro Electric.

On the other hand, the petition is void of any allegations regarding a

contractual relationship existing between Mouton and Generac. Therefore,

Mouton failed to state a cause of action against Generac for breach of contract,

negligent maintenance, or negligent repair. Accordingly, the trial court was not

manifestly erroneous in granting Generac’s exception.

This matter is remanded to the trial court for further proceedings on the

contractual claims against Metro Electric only.

DECREE

The judgment of the trial court is affirmed in part, reversed in part, and

remanded. All costs of this appeal are divided equally between Plaintiff/Appellant,

Emile Mouton, and Defendant/Appellee, Metro Electric & Maintenance, Inc.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

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