85 So. 3d 180
La. Ct. App.2012Background
- Appellants Daniel and Kathryn Friel own properties at 6511 and 6577 General Diaz Street in New Orleans and used NOW Construction for remodeling.
- In 2010 the Friels and Callihans discovered the drywall in their homes was allegedly toxic Chinese drywall emitting sulfur compounds.
- Plaintiffs filed suit in 2010 against NOW, Scott McIntyre, and Louisiana Citizens Property Insurance Corporation; NOW later asserted peremptory exceptions of no cause of action and prescription.
- The district court granted NOW's exceptions on April 28, 2011, concluding no duty existed and no redhibition claim remained viable, and that amendments would not cure defects.
- Appellants appealed, arguing their petition stated negligence and redhibition theories; the court ultimately reversed and remanded for continued proceedings.
- At oral argument appellants withdrew any redhibition claim; the petition contained a misstatement listing liability under a faulty article citation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the petition states a negligence claim against NOW | Friel argues NOW knew or should have known of drywall defects and still installed it. | NOW contends no duty or negligence is pled against it and redhibition is the sole theory. | Yes; petition states a negligence remedy against NOW. |
| Whether redhibition claims were properly pursued or waived | Redhibition claim was asserted and should be viable if pleaded truthfully. | Appellants withdrew or abandoned redhibition claims. | Redhibition issues were withdrawn, moot for prescription reasoning. |
| Prescription applicable to the asserted claims | Claims are delictual and not prescribed under articles governing defects in immovable property. | Prescription runs from discovery of defect or completion of delivery, depending on the theory, and some claims may have prescribed. | Prescription analysis deferred/undetermined in record; not dispositive on remand. |
| Whether the district court erred in granting peremptory exceptions on the face of the petition | The petition, read in the light most favorable to plaintiff, states a viable cause of action. | The petition fails to state a legal remedy against NOW. | Reversed; petition alleges a cognizable cause of action. |
| Whether the case should be remanded for further proceedings | To develop evidence on duty, causation, damages, and theories of liability. | No further proceedings should be necessary if no duty exists or claims are prescribed. | Remanded for further proceedings consistent with the opinion. |
Key Cases Cited
- Katz v. Allstate Ins. Co., 917 So.2d 443 (La. App. 4 Cir. 2005) (standard for reviewing prescription findings on peremptory exceptions)
- Brown v. Schreiner, 81 So.3d 705 (La. App. 4 Cir. 2011) (applies to prescription analysis in desecribing rescinding rules)
- Becnel v. Grodner, 982 So.2d 891 (La. App. 4 Cir. 2008) (duty-risk elements for tort claims)
- Bowser v. Premier Automotive Group, 971 So.2d 426 (La. App. 4 Cir. 2007) (no-cause-of-action standard and de novo review)
- Industrial Co., Inc. v. Durbin, 837 So.2d 1207 (La. 2003) (test for whether petition states a remedy; de novo review of issues)