Gines v. D. R. Horton, Inc. et al

Filing 62

ORDER granting in part and denying in part 7 Motion to Dismiss. Party(s) D. R. Horton, Inc. terminated. Signed by Judge James J. Brady on 07/28/2011. (NLT)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
MIKE GINES

CIVIL ACTION

VERSUS

No. 08-598

D.R. HORTON, INC., ET AL.
RULING
This matter is presently before the Court on a Motion to Dismiss (Doc. No. 7)
filed by defendants, D.R. Horton, Inc., and Reliant Heating and Air Conditioning of
Louisiana, L.L.C. Plaintiff, Mike Gines, has filed an opposition (Doc. No. 10). Plaintiff
has since filed an amended complaint (Doc. No. 36), and the parties have filed
supplemental memoranda on the motion to dismiss. Jurisdiction is based on
diversity, 28 U.S.C. § 1332. The Court, having reviewed the record, the law, and the
arguments of the parties, now concludes that the defendants’ motion to dismiss
should be GRANTED in part and DENIED in part for the following reasons.
Plaintiff has also filed a motion for default judgment against Reliant-Texas
(Doc. No. 54). However, because Reliant-Texas is alleged to be solidarily bound
with a remaining party, against whom plaintiff is not seeking default judgment, the
court defers ruling on the default judgment motion until further issues of liability are
resolved and until a hearing can be had if necessary pursuant to F.R.C.P. 55(b)(2).
FACTUAL BACKGROUND
On November 21, 2006, plaintiff purchased a new home constructed by D.R.
Horton, Inc. (D.R. Horton). The air conditioning and heating system was installed by

Reliant Heating and Air Conditioning of Louisiana, L.L.C. (Reliant) and designed by
Reliant Heating & Air Conditioning, Inc. (Reliant-Texas). After plaintiff took
possession of the home, he discovered that the heating and cooling system installed
in the home did not have the capacity to effectively maintain an appropriate
temperature.
On July 9, 2007, plaintiff made written demand by certified mail upon D.R.
Horton to repair the heating and cooling system (Doc. No. 36, Exhibits A & B).
Multiple attempts were made by D.R. Horton and Reliant to repair the cooling system
during the summer of 2007. The problems remained despite attempts to resolve
them.
Plaintiff filed suit against D.R. Horton and Reliant in state court on August 22,
2008. Reliant filed Notice of Removal (Doc. No. 2) with this Court on September 23,
2008, and D.R. Horton joined. The suit was removed and plaintiff was granted leave
to file an amended complaint. In the amended complaint, plaintiff brings suit on
behalf of himself and all plaintiffs similarly situated who own houses in the Forest
Ridge Subdivision of Livingston Parish, Louisiana. The amended complaint also
names Reliant-Texas as a defendant. The complaint alleges that defendants are
liable because “the air conditioning system, including the duct work, is not
reasonably fit for its ordinary use; the air conditioning system fails to properly cool
the home; the air conditioning system is undersized and continually runs on hot

2

days; and any other defects in the air conditioning system to be shown at trial.”1
More precisely, plaintiff contends that the ventilation ducts were improperly designed
and installed, and the 3.5 ton heating and cooling system installed in his house is
defective in that it does not have the capacity to effectively maintain an appropriate
temperature within his home. As a result of the allegedly defective air conditioning
system and duct work, plaintiff asserts causes of action under the Louisiana New
Home W arranty Act (NHW A),2 redhibition,3 breach of contract,4 poor workmanship,5
non-compliance of contract,6 and negligence.7 Plaintiff seeks reimbursement for the
cost of replacing the system, reimbursement for increased energy bills, and
attorney’s fees and costs associated with this suit.
Defendants, D.R. Horton and Reliant , filed a Motion to Dismiss (Doc. No. 7)
on September 29, 2008, prior to the filing of plaintiff’s amended complaint. In support
of their Motion to Dismiss, defendants argue that (1) the NHW A is plaintiff’s
exclusive remedy against D.R. Horton; (2) plaintiff fails to state a claim upon which

1

Record document number 36, ¶ 29.

2

La. Rev. Stat. Ann. § 9:3141, et seq.

3

La. Civ. Code Ann. art. 2520.

4

La. Civ. Code Ann. art. 1994.

5

La. Civ. Code Ann. art. 2762.

6

La. Civ. Code Ann. art. 2769.

7

La. Civ. Code Ann. art. 2315.

3

relief may be granted against D.R. Horton under the NHW A because, pursuant to
the NHW A, D.R. Horton warrants only conditions which cause actual physical
damage to the home; (3) Reliant is not subject to the NHW A, and (4) claims against
Reliant in redhibition and fraud have prescribed.8
DISCUSSION
A. Defendants’ Motion to Dismiss
1. Legal standard
Rule 12(b)(6) permits a motion to dismiss a complaint for failure to state a
claim upon which relief can be granted. To survive a motion to dismiss, the plaintiff
must plead “enough facts to state a claim to relief that is plausible on its face.”9
“Factual allegations must be enough to raise a right to relief above the speculative
level, on the assumption that all the allegations in the complaint are true (even if
doubtful in fact).”10 In reviewing the complaint, courts accept all well-pleaded facts
in the complaint as true. C.C. Port, Ltd. v. Davis-Penn Mortg. Co., 61 F.3d 288, 289
(5th Cir. 1995). Courts do not, however, accept as true all legal conclusions.
Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009). A plaintiff’s complaint must provide
sufficient factual content for the court to reasonably infer that the plaintiff is entitled

8

This motion was filed prior to the naming of Reliant-Texas as a party to this suit. As a
result, claims against Reliant-Texas were not addressed in this motion.
9

In re Katrina Canal Breaches Litigation, 495 F.3d 191, 205 (5th Cir.2007) (quoting Bell
Atlantic v. Twombly, 127 S.Ct. 1955, 1964-65 & 1973 n. 14 (2007)).
10

Bell Atlantic, 127 S.Ct. at 1965.

4

to relief based upon the context of the case and the court’s “judicial experience and
common sense.” Id. at 1949-50.
2. Claims against D.R. Horton
a. The NHWA is the plaintiff’s exclusive remedy against D.R. Horton
In his amended complaint, plaintiff seeks to impose liability on D.R. Horton
based on the NHW A, redhibition, breach of contract, poor workmanship, noncompliance of contract, and negligence.11 Defendant contends that the NHW A is
plaintiff’s exclusive remedy against D.R. Horton and that all other causes of action
against D.R. Horton should be dismissed accordingly.12 The court agrees.
The NHW A “provides the exclusive remedies, warranties, and prescriptive
periods as between builder and owner relative to home construction and no other
provisions of law relative to warranties and redhibitory vices and defects shall
apply.”13 Interpreting this language, Louisiana courts have precluded claims against
the builder of a new home in redhibition, breach of contract, poor workmanship, noncompliance of contract, and negligence where the various causes of action
essentially coalesced into claims between a builder and an owner relative to

11

Record document number 36, pp. 7-24, Counts one, three, four, five, seven, and

12

Record document number 43, pp. 2-4.

13

La. Rev. Stat. Ann. § 9:3150.

eight.

5

construction defects in a new residence.14 However, where the cause of action did
not wholly arise from construction defects, violations of the building code, or poor
workmanship, Louisiana courts have determined that the NHW A was not the sole
remedy available to the home owner.15

14

See, e.g., Carter v. Duhe, 921 So.2d 963 (La. 2006) (reinstating the trial court’s grant

of exception of no cause of action on the basis that, despite claims of negligence and breach of
contract, the NHWA was the owners’ exclusive remedy against builders for the construction of
the home); Barnett v. Watkins, 970 So.2d 1028 (La. App. 1st Cir. 9/19/07) (affirming the trial
court’s summary judgment dismissal all non-NHWA claims, including those in negligence and
non-compliance of contract, where the various causes of action essentially coalesced into
claims between a builder and an owner relative to construction defects in a new residence);
Sowers v. Dixie Shell Homes of America, Inc., 762 So.2d 186 (La. App. 2d Cir. 5/15/00)
(holding that the NHWA precludes claims in redhibition where the home owners’ complaints all
concerned defects arising from the poor workmanship in the construction of the home); Ory v.
A.V.I. Construction, Inc., 848 So.2d 115 (La. App. 5th Cir. 5/28/03),(holding that homeowners'
exclusive remedy against builder for construction defects was under the NHWA, and thus
homeowners could not sue builder in redhibition).
15

See, e.g., Allstate Enterprises, Inc. v. Brown, 907 So.2d 904 (La. App. 2d Cir. 6/29/05)
(NHWA did not apply to contract dispute between contractor and homeowners where contractor
was not responsible for building the entire home); Thorn v. Caskey, 745 So.2d 653 (La. App. 2d
Cir. 09/22/99) (NHWA was designed to protect the owner from faulty workmanship, but not to
insure completion of the construction of a home under the terms of the contract between the
owner and builder. Therefore, a builder may be found liable in an action for breach of contract
where the builder abandons construction of the home); Squyres v. Nationwide Housing, 715
So.2d 538 (La. App. 3d Cir. 06/03/98) (where the seller of a manufactured home was not the
builder, NHWA was not the exclusive remedy between the owner and seller); Melancon v.
Sunshine Construction, 712 So.2d 1011 (La. App. 1st Cir. 05/15/98) (water damage sustained
by owner's property was caused by vandalism and was not a defect in construction which would
fall under the NHWA); Leon v. Deters Custom Homes, Inc., 711 So.2d 346 (La. App. 1st Cir.
04/08/98) (NHWA was not applicable where damages to the owner's house were not caused by
defects in the construction of his house but in drainage problems the builder created upon
expansion of the subdivision).

6

It is undisputed that, under the NHW A, D.R. Horton is the builder 16 and plaintiff
is the owner17 of the home in issue in the instant case. The issue is whether claims
of an under-capacitated air conditioning unit and insufficiently installed duct work fall
within the purview of the NHW A. The Court holds that these claims are covered by
the NHW A for two reasons.
First, all of plaintiff’s claims against D.R. Horton stem from the fact that D.R.
Horton allegedly called for the installation of defective ventilation ducts and failed to
ensure the installation of an air conditioning and heating unit with the capacity to
effectively maintain an appropriate temperature within plaintiff’s home.

Since

planning and building are both elements of the process of constructing a home, the
multiple causes of action that plaintiff asserts essentially coalesce into claims
between a builder and an owner relative to “construction defects” in a new
residence.18 Second, under Louisiana Revised Statute 9:3144(A)(2), the builder,
D.R. Horton, is required to warrant that “[t]wo years following the warranty
commencement date, the plumbing, electrical, heating, cooling, and ventilating
16

The NHWA defines a builder as “any person, corporation, partnership, limited liability
company, joint venture, or other entity which constructs a home, or addition thereto, including a
home occupied initially by its builder as his residence.” La. Rev. Stat. Ann. § 9:3143(1). Plaintiff
alleges that D.R. Horton constructed the home at issue in this case. See Doc. No. 36, p. 4, ¶ 6.
17

An owner is the initial purchaser of a home. La. Rev. Stat. Ann. § 9:3143(6). An initial
purchaser includes any person for whom a home is built or the first person to whom a home is
sold upon completion of construction. La. Rev. Stat. Ann. § 9:3143(4). Plaintiff states that he
was the initial purchaser of the home at issue in this case. See Doc. No. 36, p. 4, ¶ 6.
18

Bolstering this position is the fact that, under the NHWA, a builder warrants the home
from violations of applicable building codes as well as deviations from the plans and
specifications for construction of the home. See Thorn, 745 So.2d at 660-661.

7

systems exclusive of any appliance, fixture, and equipment will be free from any
defect due to noncompliance with the building standards or due to other defects in
materials or workmanship not regulated by building standards.” Because the air
conditioning and heating unit is integrated into the ventilation ducts such that they
comprise a “system” as countenanced by Louisiana Revised Statute 9:3144(A)(2),
these items are specifically within the purview of the NHWA.19 Therefore, the NHWA
is plaintiff’s exclusive remedy against D.R. Horton and any other claims against D.R.
Horton must be dismissed.
b. Pursuant to the NHWA, D.R. Horton warrants only conditions which
cause actual physical damage to the home
Defendants next assert that, under the facts in this case, and under the
provisions of the NHW A, D.R. Horton is exempt from liability. More specifically,
defendants argue that insufficient air conditioning and heating capacity is not the
“actual physical damage” to a home that a builder is required to warrant under the
NHW A. 20 Conversely, plaintiff contends that a defective heating and cooling system
is, in and of itself, “actual physical damage” to a home.
La. Rev. Stat. Ann. § 9:3144(B)(13) provides, in relevant part, that “[u]nless
the parties otherwise agree in writing, the builder's warranty shall exclude. . . [a]ny

19

See, e.g., Craig v. Adams Interiors, Inc., 785 So.2d 997, 1002-1004 (La. App. 2d Cir.
04/06/01) (affirming the District Court’s finding that a fireplace was covered under the NHWA
warranty as a “heating system” rather than a “fixture” or “equipment” due to the fact that the
“fireplace was integrated into and became part of the heating system.”).
20

See La. Rev. Stat. Ann. § 9:3144(B)(13).

8

condition which does not result in actual physical damage to the home.”21 This court
is aware of no Louisiana court decisions that directly address whether improperly
installed ventilation ducts or an under-capacitated air conditioning system constitute
“actual physical damage” to a home. Plaintiff cites Graf v. Jim Walter Homes, Inc.,
713 So.2d 682 (La. App. 1st Cir. 5/15/98), which addresses a builder’s failure to
follow plans and specifications, for the proposition that a defective heating and
cooling system is, in and of itself, actual physical damage. Plaintiff’s reliance on Graf
is misplaced, however.
In Graf, the Court allowed an owner’s claim against a builder under the NHWA
despite the failure of the owner to show actual damage to the home’s foundation,
floor structure, wall structure, and roof/ceiling structure. Although the owner could
not literally show any physical damage to the home, the Graf Court reasoned that
the because of the builder’s gross departure from applicable building standards, the
structural integrity of the home had been diminished such that the diminution
constituted “actual physical damage” under the NHW A.22 W ith the foregoing in mind,
the Court stated that it would be absurd if “the NHW A require[d] the home to be

21

Emphasis added. “Actual physical damage” is not defined in the NHWA. However,
“major structural defect” is defined as “any actual physical damage to the following designated
load-bearing portions of a home caused by failure of the load-bearing portions which affects
their load-bearing functions to the extent the home becomes unsafe, unsanitary, or is otherwise
unlivable: (a) Foundation systems and footings; (b) Beams; (c) Girders; (d) Lintels . . .” La. Rev.
Stat. Ann. § 9:3143(5).
22

Graf, 713 So.2d at 689.

9

almost falling down around its inhabitants before physical damage could be
shown.”23
In stark contrast to Graf, plaintiff in the case sub judice has alleged no facts
which would suggest that the home’s foundation, structure, or any materials used to
build the home have sustained, or are subject to sustaining, any impending physical
damage as a result of the insufficient capacity of the air conditioning and heating
system or the improper installation of duct work. Moreover, in Graf, the builder of the
home was required, and failed to, undertake construction pursuant to plans and
specifications which were included in the contract it entered into with plaintiff.24 In the
instant case, plaintiff neither alleges that the builder failed to follow applicable
building codes, nor that the builder failed to conform to plans or specifications which
were included in the building contract.
The unambiguous language of the statute states that a builder does not
warrant any “condition which does not result in actual physical damage to the
home.”25

The alleged defects in this case are “condition[s].” Further, the

“condition[s]” as currently alleged by the plaintiff are ones which have not and will not
result in actual physical damage to the home as currently interpreted by Louisiana

23

Id.

24

Graf, 713 So.2d at 690.

25

La. Rev. Stat. Ann. § 9:3144(B)(13).

10

courts. 26 In the absence of adequate allegations of actual physical damage to the
home as required by the statute, plaintiff’s claim against D.R. Horton under the
NHW A must be dismissed. The court finds there is no need for further amendment,
as plaintiff has already filed an amended complaint (Doc. No. 36).
3. NHWA, Redhibition, and Fraud Claims against Reliant
In the Motion to Dismiss, defendant Reliant alleges that plaintiff fails to state
a claim upon which relief can be granted under the NHW A since Reliant is not a

26

Compare Hutcherson v. Harvey Smith Const., Inc., 7 So. 3d 775, (La. App. 1st Cir.
02/13/09) (improper roofing design causing roof decking to rot and bedroom ceiling to collapse
constituted actual physical damage under the NHWA); Bynog v. M.R.L., L.L.C, 903 So. 2d
1197, 1201 (La. App. 3d Cir. 06/01/05) (“[c]racking of plaster, yellowing and the rubbing off of
newly applied paint all constitute physical damages” under the NHWA) Eiswirth v. Anthony L.
Golemi, Contractor, Inc., 864 So. 2d 792, 796-797 (La. 5th Cir. 12/30/03) (cracked floor tiles,
cracked or mildewed ceilings, insufficient drainage, and cracked and failing exterior doors, are
defects which resulted in actual physical damage to home); Craig, 785 So.2d at 1003-1004
(finding actual physical damage to a home where the improper installation of a fireplace caused
a crack in the chimney, the crack required the dismantling of the hearth, and the dismantling of
the hearth resulted in a house filled with choking smoke and soot); Thorn, 745 So.2d at 660662 (holding that the bowing of walls due to faulty construction, and the improper bracing of
ceilings joists and roof rafters which would have resulted in the home not passing FHA or VA
standards, rendered the home structurally unsound, and which resulted in a sagging roof
constituted actual physical damage under the NHWA); Graf, 713 So.2d at 688-689 (deficiencies
in the foundation, floor structure, wall structure, and roof/ceiling structure of a home due to
builder’s noncompliance with the building standards were so substantial that the structural
integrity of the home had been diminished. This diminution of structural integrity constituted
actual physical damage as required by the act) with Koch v. Lamulle, 2009 WL 1270440, *2
(La. App. 1st Cir. 05/08/09) (unpublished) (NHWA claim was not viable where a bulkhead,
which allegedly failed to stabilize soil around a home, was an improvement that was not part of
the home itself and where there was no evidence of actual physical damage to the home);
Alexander v. Henderson Condo. Assoc., Inc., 778 So.2d 627, 629 (La. App. 4th Cir. 12/27/00)
(noise caused by neighbors' use of rooftop clubhouse area of condominium was not a “major
structural defect,” within meaning of the NHWA, if for no other reason than the absence of any
allegation of any actual physical damage).

11

builder, and that claims against Reliant in redhibition and fraud have prescribed.
Each of these contentions will be addressed in turn.
a. NHWA
Plaintiff contends that Reliant meets the statutory definition of a “builder” and
is thus subject to claims under the NHW A. In support of his position, plaintiff points
to the fact that Reliant installed the defective heating and air conditioning system in
his home. Defendant disputes plaintiff’s position, alleging that Reliant merely
installed the air conditioning and heating unit in plaintiff’s home and did not construct
the home or any “addition thereto” as required by the NHW A.27
The NHW A defines a builder as “any person, corporation, partnership, limited
liability company, joint venture, or other entity which constructs a home, or addition
thereto, including a home occupied initially by its builder as his residence.”28 In
Allstate Enterprises, Inc. v. Brown, 907 So.2d 904, 910-12 (La. App. 2d Cir. 6/29/05),
the court interpreted this provision as it related to a subcontractor hired to frame the
foundation, pour the slab, and frame up the plaintiff’s new home. The court held that
the subcontractor was not a “builder” under the NHW A because it was only
responsible for performing a portion of the work. Specifically, the Allstate court
reasoned that because the central definition of the NHW A is for the “home,” which
is “any new structure designed and used only for residential use . . . constructed by

27

See La. Rev. Stat. Ann. § 9:3143(1).

28

La. Rev. Stat. Ann. § 9:3143(1).

12

the builder,”29 the NHW A permits warranties by only a single builder for the entire
structure.30 Thus, the court found that the NHW A was not intended to have a scope
applicable to a subcontractor that did not construct the entire structure and deliver
it to the homeowners as their new home.31
Applying Allstate to the instant case, because Reliant merely installed the air
conditioning system and did not construct the entire home, it cannot be a builder for
purposes of the NHW A. Accordingly, plaintiff’s NHW A claims against Reliant must
be dismissed.
b. Redhibition
Plaintiff next alleges that Reliant is liable in redhibition. Defendant argues that
plaintiff’s redhibition claims have prescribed.
Louisiana Civil Code article 2534(A)(2) sets forth that when a seller did not
know of the existence of the alleged defect, the prescriptive period is one year from
the day the property was delivered to the buyer. If, on the other hand, the seller knew
or is presumed to have known of the existence of the defect, the applicable period
is one year from the day the defect was discovered by the buyer.32 However,
prescription is “interrupted when the seller accepts the thing for repairs and

29

Emphasis added. La. Rev. Stat. Ann. § 9:3143(3).

30

Allstate, 907 So.2d at 912.

31

Id.

32

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

13

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.”33
Plaintiff purchased his home on November 21, 2006 and contacted
defendants to remedy the problems by letter dated July 9, 2007.34 Thus, plaintiff was
aware of the alleged deficiencies in the cooling and heating system as early as July
9, 2007. Plaintiff filed suit in state court on August 22, 2008, more than one year
after the date the property was delivered and the date the defect was discovered.
Given that the action appears to have prescribed on the face of the petition, plaintiff
bears the burden of establishing facts which would interrupt prescription.35
In his amended complaint, plaintiff alleges that D.R. Horton and Reliant made
numerous unsuccessful attempts to repair the air condition systems during “the
summer of 2007.” 36 Plaintiff later clarified this statement to reflect that the repair
attempts were made both before and after July 9, 2007.37 Plaintiff also contends that
defendants had not abandoned their efforts to repair the cooling systems as of the
filing of the lawsuit.38 Accepting plaintiff’s allegations as true, as required by Federal
Rule of Civil Procedure 12(b)(6), plaintiff has sufficiently established facts which
33

La. Civ. Code Ann. art. 2534(C).

34

Record document number 36, p. 5, ¶ 12.

35

Ayo v. Johns-Manville Sales Corp., 771 F.2d 902 (5th Cir.1985).

36

Record document number 36, p. 5, ¶ 11.

37

Record document number 41, p. 10.

38

Record document number 36, p. 23, ¶ 83.

14

would interrupt prescription such that a claim filed on August 22, 2008 would not
have prescribed.
c. Fraud
Plaintiff also seeks to hold Reliant liable in fraud. Defendant argues that
plaintiff’s fraud claims have prescribed. In response, plaintiff argues that (1) the ten
year prescriptive period set forth in La. Civ. Code art. 3500 is applicable; (2) A&M
Pest Control Service, Inc. v. Fejta Const. Co., Inc., 338 So.2d 946 (La. App. 4 Cir.
10/13/76), and La. Civ. Code Ann. art. 2762 provide for a longer prescription period;
and alternatively that (3) one year prescription under La. Civ. Code art. 3492 is
applicable but the doctrine of contra non valentem suspended the running of
prescription.
La. Civ. Code art. 3500 provides ten year prescription for “[a]n action against
a contractor or an architect on account of defects of construction, renovation, or
repair of buildings and other works.” La. Civ. Code art. 2762 provides that an
architect or other workman is liable for loss should a building fall to ruin in part
because of workmanship in the course of ten years, if the building is made of stone
or brick, or five years, if the building is built in wood or with frames filled with bricks.
Neither of these statutes is applicable to plaintiff’s fraud claims. It is well settled
under Louisiana law that claims for fraud prescribe after one year.39 Thus plaintiff’s
first and second contentions are without merit.
39

See La. Civ. Code Ann. art. 3492; Cacioppo v. Alton Ochsner Foundation Hosp., 806
So.2d 803, 805 (La. App. 5 Cir. 12/26/01).

15

Turning to plaintiff’s third argument, the Court agrees that the prescriptive
period in La. Civ. Code art. 3492 is applicable to plaintiff’s fraud claims. Article 3492
states in relevant part that “[d]elictual actions are subject to a liberative prescription
of one year. This prescription commences to run from the day injury or damage is
sustained. . .” Because the running of prescription would have commenced on
November 21, 2006, the day plaintiff received possession of his home, plaintiff
argues that the doctrine of contra non valentem applies to suspend prescription
beyond August, 23, 2007, one year prior to the filing of his suit.
Contra non valentem is a Louisiana jurisprudential doctrine under which
prescription may be suspended.40 Because the doctrine is of equitable origin, it only
applies in exceptional circumstances.41 There are four recognized categories of this
doctrine: (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 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.42

40

Carter v. Haygood, 892 So.2d 1261, 1268 (La. 2005).

41

See Renfroe v. State ex rel. Dep't of Transp. & Dev., 809 So.2d 947, 953 (La. 2002).

42

Carter, 892 So.2d at 1268.

16

The fourth category of contra non valentem, commonly known as the
“discovery rule,” is an equitable pronouncement that statutes of limitation do not
begin to run against a person whose cause of action is not reasonably known or
discoverable by him, even though his ignorance is not induced by the defendant.43
Applying this fourth category to the facts in the instant case, prescription was
suspended as late as July 9, 2007, the date when plaintiff knew of the defect and
sent a letter to defendants requesting that they remedy the problems. Plaintiff filed
suit in state court on August 22, 2008, more than one year after prescription began
to accrue again on July 9, 2007. Thus, because this fourth category of contra non
valentem is not enough to suspend prescription such that plaintiff would have a valid
cause of action, plaintiff argues that the third category applies as well.
The third category of contra non valentem encompasses situations where an
innocent plaintiff has been lulled into a course of inaction in the enforcement of his
right by some concealment or fraudulent conduct on the part of the defendant.44 In
order for this exception to apply, it must first appear as a matter of law that words,
actions, or inaction on the part of the defendant were designed to, and did, lull
plaintiff into a false sense of security and a course of inaction.45 Second, it must
appear that the specific acts alleged to have occurred in this particular case, would,

43

Teague v. St. Paul Fire & Marine Ins. Co., 974 So.2d 1266, 1274 (La. 2/1/08).

44

Id. at 1269.

45

Williams v. Red Barn Chem., Inc., 188 So.2d 78 , 81 (La. App. 1st Cir.1966).

17

as a matter of law, be compelling so as to bring this case within that class of
situations adequate to suspend the running of prescription and justify the plaintiff in
bringing his action late.46
Under the third exception to prescription, plaintiff contends that defendants
knew that the cooling system was defective and continued to explain to plaintiff that
the unit was repaired in order to lull plaintiff into a course of inaction in the
enforcement of his right. Although it may well be that the repairs attempted by
defendants were designed to, and did, temporarily stop the plaintiff from filing suit
against the defendant, the acts of repairing and continuously assuring plaintiff that
the unit was repaired were not the type of “compelling” acts such as to “bring [this]
case within that class of situations adequate to suspend the running of prescription
and justify the plaintiff in bringing his action late.”47
Plaintiff sent a letter to defendants on July 9, 2007, demanding the “installation
of a proper air conditioning and heating system within the next fifteen (15) days.”48
In the same letter plaintiff warned that the “failure to do so will result in [plaintiff] filing
a formal complaint with the Louisiana State Licensing Board for Contractors and

46

Id.

47

Id. at 82.

48

Record document number 36, Exhibit A.

18

resulting legal action.”49 The plaintiff did neither until August 23, 2008, when he filed
this action in state court.
The words and actions of defendants in this case do not justify plaintiff waiting
from July 9, 2007 to August 23, 2008 to judicially assert his claim. The most that
could be said is that prescription would have been suspended as a result of
defendant’s statements and actions during the period in which plaintiff might
reasonably have expected to receive the promised repairs from defendants, and no
longer.50 Because plaintiff expected to receive the promised repairs no later than 15
days from July 9, 2007, the Court finds that prescription was suspended until July
24, 2007. As plaintiff’s suit was not filed until August, 23, 2008, this Court finds that
plaintiff’s fraud claims against Reliant have prescribed.
Accordingly, for the foregoing reasons assigned, the motion to dismiss (Doc.
No. 7) is GRANTED IN PART AND DENIED IN PART, as follows.
IT IS ORDERED that all of plaintiff’s claims against D.R. Horton are HEREBY
DISMISSED.
IT IS FURTHER ORDERED that plaintiff’s New Home W arranty Act claim
against Reliant is DISMISSED.
IT IS FURTHER ORDERED that plaintiff’s fraud claim against Reliant is
DISMISSED. However, plaintiff’s redhibition claim against Reliant remains viable.

49

Record document number 36, Exhibit A.

50

See Williams, 188 So.2d at 82.

19

The court DEFERS ruling on the Motion for Default Judgment (Doc. No. 54).
Signed in Baton Rouge, Louisiana, on July 28, 2011.

S

JUDGE JAMES J. BRADY
UNITED STATES DISTRICT COURT

20