LUCIEN H. DAUTERIVE AND LAURA A. DAUTERIVE
TILE REDI, LLC AND TILE REDI MANAGER, INC.
APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH
OF JEFFERSON, STATE OF LOUISIANA NO. 714-155, DIVISION
"L" HONORABLE DONALD A. ROWAN, JR., JUDGE PRESIDING
COUNSEL FOR PLAINTIFF/APPELLANT, LUCIEN H. DAUTERIVE AND
LAURA A. DAUTERIVE Stephen J. Caire
COUNSEL FOR DEFENDANT/APPELLEE, TILE REDI, LLC, TILE REDI
MANAGER, INC., AND MARYLAND CASUALTY COMPANY Jason P. Wixom
Thomas H. Barnett Aaron J. Weidenhaft
composed of Judges Susan M. Chehardy, Fredericka Homberg
Wicker, and Hans J. Liljeberg
M. CHEHARDY, CHIEF JUDGE.
Lucien and Laura Dauterive, appeal the district court's
July 24, 2017 judgment sustaining the peremptory exception of
prescription and dismissing with prejudice their redhibition
claims against defendants, Tile Redi, LLC, Tile Redi Manager,
Inc., and Maryland Casualty Company. For the reasons that follow,
we find plaintiffs are entitled to relief and reverse this
judgment of the district court.
AND PROCEDURAL HISTORY
process of rebuilding their home following Hurricane Katrina,
plaintiffs purchased a custom shower pan for their shower
enclosure from Tile Redi on March 3, 2007 and installed it
themselves according to the manufacturer's drawings and
specifications provided by Tile Redi. Four years later, on
April 29, 2011, plaintiffs discovered that the shower pan had
been leaking through pinholes in the side of the pan. The
leak caused water damage to nearby wood, attracting termites
and compounding the damage. Plaintiffs sent photographs of
the damage to Tile Redi, complaining that a manufacturing
defect of the shower pan was the cause of the damage.
Thereafter, Tile Redi allegedly accepted the shower pan for
repairs, but did not resolve the complaint before plaintiffs
filed suit on April 26, 2012, in which they raised an action
in redhibition, alleging that the pinholes in the shower pan
constituted a redhibitory defect. They sought rescission of
the sale, restitution of the purchase price, and damages in
excess of $50, 000 for repairs of the property, relocation
expenses, and emotional distress. They also sought costs and
Redi, a company domiciled in Florida, was served and excepted
to the lawsuit on the grounds of lack of personal
jurisdiction. After this was resolved in plaintiffs'
favor, Tile Redi filed its answer on November 14, 2012.
Discovery ensued and trial was set for July of 2017. Prior
thereto, Tile Redi pled the peremptory exception of
prescription on July 10, 2017, arguing that because Tile Redi
was not the manufacturer of the shower pan, plaintiffs'
action was prescribed pursuant to La. C.C. art. 2534(A)(1).
In response, plaintiffs maintained that La. C.C. art.
2534(A)(1) did not control and that their action was not
prescribed on the face of the petition because they had
alleged that Tile Redi was both the seller and manufacturer
of the shower pan, and was therefore deemed to know of
redhibitory defects pursuant to La. C.C. art.
2545. As a result, La. C.C. art. 2534(B)
controlled and their claim was not prescribed.
hearing on the exception on July 12, 2017, no evidence was
introduced by either party and the district court sustained
the exception of prescription. In its written judgment that
followed on July 24, 2017, the court dismissed
plaintiffs' claims against Tile Redi with prejudice.
Plaintiffs moved for a new trial, which was denied, and
thereafter devolutively appealed the district court's
judgment of July 24, 2017.
appeal, plaintiffs assign as error the district court's
judgment sustaining Tile Redi's peremptory exception of
prescription is raised by peremptory exception, with evidence
being introduced at the hearing on the exception, the trial
court's findings of fact on the issue of prescription are
subject to the manifest error-clearly wrong standard of
review. Specialized Loan Servicing, L.L.C. v.
January, 12-2668 (La. 6/28/13), 119 So.3d 582, 584. If,
on the other hand, evidence is not introduced at the hearing
on the exception, and the issue before the court is the
interpretation of the prescriptive statute, the case presents
a question of law that is subject to the de novo
standard of review. See id.; Halliburton Energy
Servs. v. Bossier Par. Bd. of Review, 50, 734 (La.App. 2
Cir. 8/10/16), 200 So.3d 385, 386. In the latter scenario,
without introduction of evidence, the exception of
prescription must be decided on the facts as alleged in the
petition with all allegations therein accepted as true.
See Tenorio v. Exxon Mobil Corp., 14-814 (La.App. 5
Cir. 4/15/15), 170 So.3d 269, 273, writ denied,
15-1145 (La. 9/18/15), 178 So.3d 149. Ordinarily, the
exceptor bears the burden of proof on the peremptory
exception; however, if prescription is evident on the face of
the pleadings, the burden shifts to the plaintiff to show
that the action has not prescribed. Id. at 273-74.
plaintiffs' petition asserted a cause of action in
redhibition, wherein they alleged that the shower pan had
redhibitory defects and that Tile Redi, as both the seller
and manufacturer of the pan, was deemed ...