Philip Delaney VS Amite Homes, Inc.

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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2011 CA 2323 PHILIP DELANEY VERSUS AMITE HOMES INC Judgment Rendered JUN 13 2012 On Appeal from the Twenty First Judicial District Court In and for the Parish of Tangipahoa Trial Court Number 516 558 The Honorable Brenda Bedsole Ricks Judge Jenel G Secrease Ponchatoula Louisiana Charles K Chauvin Thomas E Loehn Counsel for Plaintiff Appellant Philip Delaney Counsel for DefendantAppellee Amite Homes Inc Metairie Louisiana Rebecca K Wisbar Baton Rouge Louisiana Counsel for DefendantAppellee Republic Vanguard Insurance Co Deborah E Lamb Counsel for Defendant Appellee Baton Northfield Insurance Co Rouge Louisiana Karl H Schmid III Sidney W Degan Orleans Louisiana New Counsel for Third Party Defendants Appellees Certain Underwriters at s Lloyd London BEFORE GAIDRY McDONALD AND HUGHES JJ 2 HUGHES J This is an appeal of a judgment sustaining peremptory exceptions pleading the objections of prescription and no right of action For the reasons that follow we dismiss the appeal in part reverse the August 24 2011 trial court judgment and remand for further proceedings FACTS AND PROCEDURAL HISTORY On May 21 2008 Philip Delaney purchased a 2007 Patriot mobile for home 000 78 from Amite Homes Inc Amite Homes During delivery of the mobile home the tongue was broken allegedly causing extensive damage to the mobile home On January 26 2009 Mr Delaney filed suit against Amite Homes alleging the mobile home was delivered to him unfit for its intended use and he would not have purchased it had he known of the defects He further alleged that the mobile home defects s were not known or apparent to him when he purchased it and that Amite Homes was provided an opportunity to repair the mobile home Mr Delaney sought redhibition of the mobile home return of the sales price damages attorney fees interest and all costs of suit Mr Delaney later amended his petition to add as defendants Northfield Insurance Company Northfield Amite Homes insurer and Sumrall Big Yellow Truck s C L Big Yellow the mobile home delivery company Amite Homes filed an answer denying the allegations and asserting a third party demand against Big Yellow who it alleged was actually and physically responsible for the transportation delivery and set up Republic Vanguard Insurance Company Republic Big Yellow commercial general s liability insurer Progressive Security Insurance Company Progressive Big Although the plaintiffs amended petition named this defendant as Northland Insurance Company the defendant in its answer indicated that its correct name was Northfield Insurance Company 3 s Yellow automobile insurer and Certain Underwriters at Lloyds Underwriters a liability insurer for Big Yellowz In answer to the suit Northfield Republic and Progressive all asserted that their respective policies of insurance did not provide coverage for the damages claimed or relief sought by the plaintiff and further affirmatively pled the defenses of comparative negligence contributory negligence plaintiffs duty to mitigate his damages waiver estoppel prescription peremption and applicable statutes of limitation or Underwriters subscribing each for themselves and no other to a proportionate share of Policy No W0405C08PNYG filed a peremptory exception pleading the objection of no right of action contending that it had issued to Big Yellow an automobile physical damage insurance policy and that Louisiana Direct Action Statute authorized a direct action against only s a liability insurer Amite Homes also filed an exception of no right of action asserting that Mr Delaney was not entitled to bring an action in redhibition since at the time the suit was filed he was no longer the owner of the mobile home Following a March 28 2011 hearing on Amite Homes exception of no right of action judgment was signed on April 11 2011 granting the objection and dismissing with prejudice the petition of Philip Delaney However in that judgment Plaintiffs counsel was allowed ten days to amend the petition An amended petition was filed on April 6 2011 amending Paragraph 1 of the petition which previously read Petitioner Philip Delaney to In its third party demand Amite Homes further alleged that Big Yellow had filed for bankruptcy protection The bankruptcy of an alleged tortfeasor triggers Louisiana Direct Action Statute LSA R s S 1269 22 allowing an action to be brought directly against an insurer as provided therein Although Amite Homes stated that it was not relying on the point for purposes of its exception of no right of action it asserted in brief to the trial court that Mr Delaney made a judicial admission in his petition that the mobile home was not defective at the time of purchase but rather was allegedly damaged due to improper delivery and Amite Homes did not perform the delivery 4 read Petitioner Dianne Delaney and amending Paragraph 3 of the petition which previously read Petitioner herein Philip Delaney purchased a 2007 Patriot Pinnacle Neighborhood Mobile Home to read Philip Delaney purchased a 2007 Patriot Pinnacle Neighborhood Mobile Home which he gifted to petitioner Dianne Delaney Dianne Delaney was further substituted in place of Philip Delaney in the petition prayer for relief s Thereafter Republic and Progressive each filed a motion for summary judgment seeking dismissal of the third party demand as to each company on the basis of the respective insurance policy provisions On May 5 2011 Amite Homes filed an exception of prescription as to the plaintiff second amending petition which had substituted Dianne s Delaney as the plaintiff in the case Amite Homes argued that since the petition of Philip Delaney was previously dismissed on the trial court s finding that he had no right to bring the suit in redhibition Dianne Delaney s claim filed via the April 6 2011 second amended petition had prescribed as it was filed more than one year after the May 2008 sale of the mobile home Northfield and Republic also filed exceptions of prescription and additionally filed exceptions of no right of action asserting that Dianne Delaney had no right of action since she was not the purchaser of the mobile home only a donee of the purchaser The exceptions filed by Amite Homes Northfield and Republic were heard by the trial court on August 15 2011 and a judgment was signed on August 24 2011 granting the exceptions of prescription and no right of 4 We mention these motions for summary judgment as part of the procedural history of this case but the record reflects that no hearing was held on these motions and that they were removed from the trial court s docket as moot after the granting of the exceptions of no right of action and prescription and judgment thereon dismissing the case However Progressive was dismissed on consent of the parties by ajudgment signed on August 18 2011 5 action and dismissing all demands of all plaintiffs including Dianne Delaney with prejudice A motion for devolutive appeal was subsequently filed on September 12 2011 purporting to appeal both the April 11 2011 judgment and the August 24 2011 judgment On appeal one assignment of error is presented The Trial Court committed manifest error when it granted Appellees Exceptions of No Right of Action and Exceptions of Prescription finding that Philip Delaney did not have a right of action to pursue his claim and that if Dianne Delaney was the proper party that she too did not have a right of action and that her claims had prescribed LAW AND ANALYSIS Finality of Dismissal of Philip Delaney Action s Philip Delaney saction was dismissed by the April 11 2011 judgment of the trial court which he did not attempt to appeal until the instant appeal was filed on September 12 2011 All of the appellees in this matter Amite Homes Northfield and Republic have challenged the effectiveness of the September 12 2011 motion for appeal visavis the April 11 2011 judgment dismissing Philip Delaney suit s Furthermore this court has a duty to examine subject matter jurisdiction sua sponte even when the issue has not been raised by the litigants See McGehee v CityParish of East Baton Rouge 2000 1058 La App 1 Cir 9 809 So 258 260 01 12 2d An appellant failure to timely file a devolutive appeal is a s jurisdictional defect in that neither the court of appeal nor any other court has the jurisdictional power and authority to reverse revise or modify a final judgment after the time for filing a devolutive appeal has elapsed When an appellant fails to timely file a devolutive appeal from a final judgment the judgment acquires the authority of the thing adjudged and the 6 court of appeal has no jurisdiction to alter that judgment Lay v Stalder 990402 La App 1 Cir 3757 So 916 919 00 31 2d A judgment that dismisses a party from a suit is a partial final judgment subject to immediate appeal pursuant to LSAC art P C A6 1915 1 without the need of the trial court certification as such See s Block Bernard Cassisa Elliott Davis 2004 1893 La App I Cir 05 4 11 927 So 339 344 n 2d 4 The failure to appeal a partial final v judgment subject to immediate appeal under LSA C art 1915 P 1 A deprives this court of jurisdiction to review any issues as to the propriety of that judgment See Cavalier v Rivere Trucking Inc 2003 2197 La s App 1 Cir 9 897 So 38 40 citing Motorola Inc v Associated 04 17 2d Indemnity Corporation 2002 0716 La App 1 Cir 4 867 So 03 30 2d 715 721 en banc A dismissal with prejudice has the effect of a final judgment on the merits Id 897 So at 41 2d In the instant case the April 11 2011 trial court judgment dismissed the claims of a party Mr Delaney with prejudice but allowed an amendment to add Dianne Delaney as a plaintiff other issues remained Ajudgment is either final or interlocutory as stated in LSAC art 1841 which provides P C A judgment is the determination of the rights of the parties in an action and may award any relief to which the parties are entitled It may be interlocutory or final A judgment that does not determine the merits but only preliminary matters in the course of the action is an interlocutory judgment A judgment that determines the merits in whole or in part is a final judgment 6 Louisiana Code of Civil Procedure Article 1915 A provides I A final judgment may be rendered and signed by the court even though it may not grant the successful party or parties all of the relief prayed for or may not adjudicate all of the issues in the case when the court Dismisses the suit as to less than all of the parties defendants third party plaintiffs third party defendants or intervenors Louisiana Code of Civil Procedure Article 1911 further provides in part No appeal may be taken from a partial final judgment under Article 1915 until the 6 judgment has been designated a final judgment under Article 1915 An appeal may be 3 taken from a final judgment under Article 1915 without the judgment being so A designated 7 unadjudicated in the case Therefore the April 11 2011 judgment was a partial final judgment subject to immediate appeal in accordance with LSA P C art 1915 The failure of Mr Delaney to appeal that judgment of A dismissal within either the thirtyday time period for the taking of a suspensive appeal as provided in LSAC art 2123 or the sixty day P C time period for the taking of a devolutive appeal as provided in LSAC P C art 2087 resulted in the judgment becoming res judicata and it cannot now be altered by this court Thus only the issues raised on appeal relating to the trial court s August 24 2011 judgment which sustained exceptions of no right of action and prescription as to Dianne Delaney action in redhibition may be s reviewed on appeal at this time Exception ofNo Right ofAction In their exceptions of no right of action Northfield and Republic contended that Dianne Delany did not purchase the mobile home in question and therefore had no right to bring this suit seeking redhibition Except as otherwise provided by law an action can be brought only by a person having a real and actual interest which he asserts LSA C P art 681 Article 681 serves as the basis of the peremptory exception urging the objection that the plaintiff has no right of action LSA C art 681 P 1960 Revision Comment b The exception of no right of action is designed to test whether a plaintiff has a real and actual interest in the action iwhether the plaintiff e belongs to the class of persons to whom the law grants the cause of action asserted in the suit The exception of no right of action assumes that the petition states a valid cause of action for some person and questions whether the plaintiff in the particular case is a member of the class that has a legal 8 interest in the subject matter of the litigation See Robertson v Sun Life Financial 20092275 La App 1 Cir 6 40 So 507 511 citing 10 11 3d LSA C art 927 P 6 Unlike the exception of no cause of action evidence may be received under the exception of no right of action for the purpose of showing that the plaintiff does not possess the right he claims or that the right does not exist To prevail on the exception of no right of action the defendant has the burden of establishing that the plaintiff does not have an interest in the subject matter of the suit or legal capacity to proceed with the suit Where doubt exists regarding the appropriateness of an objection of no right of action it is to be resolved in favor of the plaintiff Robertson v Sun Life Financial 40 So at 511 12 3d The right of redhibition is set forth in LSAC art 2520 which C 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 The redhibitory action is between a seller and a buyer and without such a relationship the action cannot be maintained Duplechin v Adams 95 0480 La App 1 Cir 11 665 So 80 84 writ denied 95 2918 La 95 9 2d Louisiana Code of Civil Procedure Article 927 provides 6 A The objections which may be raised through the peremptory exception include but are not limited to the following 6 No right of action or no interest in the plaintiff to institute the suit 9 96 2 666 So 1104 2d See also Connell v Davis 2006 9 La App 5 Cir 10 940 So 195 205 writs denied 2006 2810 2006 2839 06 17 2d La 1 948 So 175 178 Long v Bruns 31 La App 2 Cir 07 26 2d 427 99 20 1 727 So 664 66 writ denied 99 0480 La 4 742 So 2d 99 23 2d 881 Leflore v Anderson 537 So 215 218 La App 4 Cir 1988 2d The issue is then whether the defendant appellees sustained their burden to prove that Dianne Delaney was not a purchaser of the buyer mobile home The only items of evidence presented on this point were the excerpts from the August 9 2010 depositions of Philip Delaney and Dianne Delaney filed into the record Mr Delaney testified that the 78 used to 000 purchase the mobile home came in part from the proceeds of an old mobile home that had been sold Mr Delaney indicated that the old mobile home had been purchased partially with his money and partially with Dianne s money Mr Delaney stated that he paid the major portion of the purchase price of the new Amite Homes mobile home and that it was like a gift to Dianne he later stated that t iwas a gift Dianne testified It was my money that purchased the Amite Mobile Home trailer When asked why she was not listed on the bill of sale Dianne stated I should be She further stated that although her father had put up money for the purchase of the mobile home she paid it back Dianne explained that since she did not have a husband her father helped her with business matters Even though Mr Delaney stated that Dianne did not formally pay him back he indicated that she did so by helping out him and his wife who were both in their 70 s This testimony reveals that funds belonging to both Philip Delaney and Dianne Delaney were used to purchase the mobile home from Amite Homes making them ostensible coowners Another reasonable inference to 10 be drawn from the testimony is that Philip Delaney acted as Dianne s Delaney agent or mandatary see LSA C art 2989 et seq in purchasing the mobile home on her behalf at least to the extent that a portion of the funds belonged to her obviously he acted on his own behalf as to the portion of the funds that belonged to him Therefore the testimony failed to establish that Dianne Delaney was not a cobuyer of the mobile home at issue Applying the jurisprudential tenet set forth in Robertson supra that doubt regarding the appropriateness of an objection of no right of action is to be resolved in favor of the plaintiff we must conclude that the trial court erred in granting the no right of action exception Exception of Prescription Amite Homes Northfield and Republic each filed exceptions of prescription in the trial court asserting that when this suit was amended to add Dianne Delaney as a party plaintiff her action had prescribed since it could not relate back to the filing of the original petition by Philip Delaney who the trial court ruled had no right to bring the action The prescriptive period for a redhibition action is one year from the day the defect is known by the buyer LSAC art 2534 The mobile C home at issue in this case was purchased on May 21 2008 and the defects were apparent on the date of delivery which occurred on or about May 29 2008 The amending petition substituting Dianne Delaney as plaintiff was filed more than one year later on April 6 2011 However rescription p is interrupted when the obligee commences action against the obligor in a court of competent jurisdiction and venue LSA C art 3462 Further t filing of suit in a court of he competent jurisdiction and venue interrupts any kind of prescription as to the causes of action therein sued upon provided the plaintiff is a proper party 11 plaintiff and the defendant is a proper party defendant LSA C art 3462 1982 Revision Comment b When the action or defense asserted in the amended petition or answer arises out of the conduct transaction or occurrence set forth or attempted to be set forth in the original pleading the amendment relates back to the date of filing the original pleading LSA C art P 1153 An amendment adding or substituting a plaintiff should be allowed to relate back if 1 the amended claim arises out of the same conduct transaction or occurrence set forth in the original pleading 2 the defendant either knew or should have known of the existence and involvement of the new plaintiff 3 the new and the old plaintiffs are sufficiently related so that the added or substituted party is not wholly new or unrelated 4 the defendant will not be prejudiced in preparing and conducting his defense Giroir v South Louisiana Medical Center Division ofHospitals 475 So 1040 1044 La 1985 2d In this case the amended claim of Dianne Delaney clearly arose out of the same conduct transaction or occurrence set forth in the original petition filed by Philip Delaney Further the depositions of Dianne and Philip Delaney were taken on August 9 2010 placing the defendants on notice at that time that Dianne Delaney had a financial interest in the mobile home Nor have the defendants shown any way in which they were prejudiced by the substitution of Dianne as the party plaintiff in April 2011 Thus the only remaining issue is whether Philip Delaney was a proper party plaintiff at the time he filed the original petition so that prescription was interrupted making Dianne April 6 2011 petition timely As stated s hereinabove we cannot review the April 11 2011 trial court judgment dismissing the claims of Mr Delaney for purposes of granting Mr Delaney relief from that judgment since he failed to timely file an appeal from the 12 judgment however we are not precluded from determining whether Mr Delaney was in fact a proper party plaintiff for purposes of addressing the prescription issue as it relates to Dianne Delaney The testimonial evidence of Philip and Dianne Delaney in this case did not exclude the possibility that Philip Delaney had some ownership interest in the Amite Homes mobile home at the time this suit was filed He testified that he provided the major portion of the funds for the purchase price of the home And while Philip intent to make a gift of the mobile s home to Dianne was evident in his testimony no evidence has been presented to establish that the donation has actually been accomplished Further the bill of sale clearly names Philip Delaney as a buyer Therefore the evidence established that Philip Delaney was a buyer who had a right to bring this suit for redhibition Since Mr Delaney was a proper party plaintiff at the time he filed the instant suit prescription was interrupted Consequently when Dianne Delaney filed the April 6 2011 amended petition to substitute herself as a party plaintiff that petition related back to the filing of the original petition and must be considered as timely filed We conclude that Dianne s Delaney action has not prescribed We recognize that in order to rescind a sale the vendee must have ownership of the purchased property or its return to the vendor would be impossible but ownership is not required to maintain an action for quanli minoris See Gustin v Shows 377 So 1325 1328 La App I Cir 1979 In the instant case the 2d evidence showed that Philip Delaney and Dianne Delaney were co buyers and coowners of the mobile home there was no indication that Mr Delaney would have been unable to return the mobile home which was the object of the sale in the event that rescission of the sale was awarded by the trial court See LSA C art 2532 Mitchell v Popiwchak 95 1423 La App 4 Cir 6 96677 So 1050 1054 26 2d 9 It is important to note that on the date that Dianne Delaney filed an amended petition in this matter substituting herself as the party plaintiff April 6 2011 the judgment dismissing Philip Delaney had not been signed and the judgment dismissing Mr Delaney was not final until the date it was signed April 11 2011 See LSA C art 1911 stating that every final judgment must be signed by the judge See also P Davis v Clemmons 205 So 143 La App I Cir 1967 2d 13 CONCLUSION For the reasons assigned herein we dismiss the appeal in part insofar as it purports to make Philip Delaney an appellant and we reverse the August 24 2011 trial court judgment granting the exceptions pleading the objections of no right of action and prescription and dismissing the claims of Dianne Delaney we also remand the matter to the trial court for further proceedings consistent with the foregoing assessed All costs of this appeal are to the defend ant Amite appellees Homes Inc Northfield Insurance Company and Republic Vanguard Insurance Company equally APPEAL OF PHILIP DELANEY DISMISSED AUGUST 24 2011 TRIAL COURT JUDGMENT REVERSED REMANDED 14

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