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Mouton v. Generac Power Systems, Inc.

Court of Appeal of Louisiana, Third Circuit

November 5, 2014


Page 986


Matthew D. McConnell, McConnell Law Offices, Lafayette, Louisiana, Counsel for Plaintiff/Appellant: Emile Mouton.

Ronald J. White, Murphy, Rogers, Sloss & Gambel, New Orleans, Louisiana, Counsel for Defendant/Appellee: Generac Power Systems, Inc.

Cearley W. Fontenot, Oats & Marino, Lafayette, Louisiana, Counsel for Defendant/Appellee: Metro Electric & Maintenance, Inc.

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


Page 987

[14-350 La.App. 3 Cir. 1] 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.

Page 988


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' [14-350 La.App. 3 Cir. 2] 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:

Page 989

[14-350 La.App. 3 Cir. 3] (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.


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.

[14-350 La.App. 3 Cir. 4] 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 ...

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