author: GENOVESE, Judge. THIBODEAUX, Chief Judge,

text:
    R. Chadwick EDWARDS, Jr. v. LAROSE SCRAP & SALVAGE, INC.
    No. 11-1412.
    Court of Appeal of Louisiana, Third Circuit.
    April 4, 2012.
    Rehearing Denied May 30, 2012.

      R. Chadwick Edwards, Jr., Edwards & Bellaire, L.L.C., Abbeville, LA, for Plaintiff/Appellant, R. Chadwick Edwards, Jr.
    J. Isaac Funderburk, Funderburk & Herpin, Abbeville, LA, for Appellees/De-fendants, Larose Scrap & Salvage, Inc. and Paul Cummings.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, JAMES T. GENOVESE, and SHANNON J. GREMILLION, Judges.
   GENOVESE, Judge.

|TIn this malicious prosecution and defamation case, coming before this court a second time, Plaintiff, R. Chadwick Edwards, Jr., appeals the trial court’s grant of summary judgment in favor of Defendants, Larose Scrap & Salvage, Inc. and Paul Cummings. For the following reasons, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

The facts of this case were set forth in this court’s previous opinion as follows:

In 2003, Larose filed a petition for declaratory judgment and for damages. In the course of those proceedings, Edwards, as a corporate officer of Larose, was deposed. Based on statements made in that deposition, Larose amended its suit to include claims against Edwards. Specifically, Larose alleged that Edwards committed fraud due to the sale of property to Larose which neither Edwards nor his company owned. All causes of action asserted against Edwards were ultimately dismissed. Thereafter, on December 2, 2009, Edwards filed suit against Larose and Cummings, alleging malicious prosecution and defamation. Larose and Cummings filed peremptory exceptions of no cause of action. Next, Larose and Cummings filed a motion for summary judgment alleging that Edwards’ allegations lacked factual support and that there were no genuine issues of material fact. Attached to the motion was Edwards’ deposition, taken on March 3, 2006, in the other suit. Edwards countered with a motion for default judgment based on the fact that neither Larose nor Cummings had filed an answer. The motion for default judgment was denied. Edwards also filed a motion to strike the use of his prior deposition, asserting that a motion for summary judgment may not be supported with a deposition from another case. Following a hearing, the motion for summary judgment filed by Larose and Cummings was granted, and Edwards’ suit was dismissed.

Edwards v. Larose Scrap & Salvage, Inc., 10-596, p. 1 (La.App. 3 Cir. 12/8/10), 52 So.3d 1009, 1010. Edwards appealed and argued that the trial court erred when it relied upon a collateral deposition to grant summary judgment in favor of Larose and Cummings. Following our holding in Bell v. Gold Rush Casino, 04-1123 (La.App. 3 Cir. 2/2/05), 893 So.2d 969, this court “agree[d] with Edwards that the trial court improperly considered a collateral deposition^] ... reverse[d] the trial |2court’s grant of summary judgment in favor of Larose and Cummings[,] and remand[ed] the matter to the trial court for further proceedings.” Edwards, 52 So.3d at 1011.

Upon receiving this court’s decision in the previous appeal remanding the case for further proceedings, the trial judge sent a letter to the clerk of court stating, “Please schedule the above referenced matter for rehearing[.]” The matter was rescheduled, and the clerk of court sent notice to the parties.

After receiving said notice, Larose and Cummings took Edwards’ deposition again, and, with no objection from Edwards, the deposition was filed into the note of evidence in support of their motion for summary judgment. At the summary judgment hearing, the trial court stated:

[N]ow with this new deposition, I don’t see that anything has changed in this new deposition. I mean, we still have the fact that, the fact as stated in the deposition that there’s no lease of record that I can see or know about as far as for saying — I guess my concern was if that lease agreement would have said something to the effect that any properties left in something like that, then certainly there would have been no issue of you selling those things.
[W]hen they filed the suit against you for selling the property you had no— there was nothing deeming the property abandoned at that time. To me that makes your suit now baseless because they — I mean, the facts are the facts. And I don’t think any new facts are going to come out. The fact that when you filed this suit there’s now some judgment saying that property was deemed abandoned. The issue was that when they filed their suit[,] that property wasn’t deemed abandoned. So their suit was proper. I mean, it wasn’t malicious prosecution!,] and it wasn’t defamation!,] if they didn’t have anything confirming that this property was abandoned.

The trial court then granted the motion for summary judgment filed by Larose and Cummings, and Edwards’ suit was dismissed. Edwards appeals.

ASSIGNMENTS OF ERROR

Edwards asserts the following assignments of error:

ASSIGNMENT OF ERROR NO. 1:
The law of the case doctrine prevents and precludes a trial court from reconsidering its prior decision in contravention of the Order of remand by the court of appeal. Bowie v. Young, 2001-0715 (La.App. 3 Cir. 3/20/02), 813 So.2d 562.
ASSIGNMENT OF ERROR NO. 2:
Upon remand!,] the trial court may not!,] upon its own motion!,] notice for hearing a motion for summary judgment which has been denied by the appellate court where there has been no new motion filed or supported. Code of Civil Procedure Article 966(A)(1).
ASSIGNMENT OF ERROR NO. 3:
Once denied a motion for summary judgment addressing the same issues may not be re-urged unless and until the record has been supplemented with meaningful additions which clearly establish that there is no longer any issue of material fact to be determined by a trial on the merits. Monumental Life Ins. Co. v. Landnj, 2002-891 (La.App. 3 Cir. 2/19/03), 846 So.2d 798.
ASSIGNMENT OF ERROR NO. 4:
Where neither an answer nor an affidavit in support has been filed a [sic] all allegations contained within the petition which have been supported by affidavit are accepted as true.
ASSIGNMENT OF ERROR NO. 5:
Affirmative defenses must be specifically plead in the answer by the assertion of facts which state in short and concise terms the material facts upon which the defenses to the action is based, and the trial court may not consider an affirmative defense which was not asserted in any pleading. Code of Civil Procedure Articles 1003 and 1005; Rogers v. State, ex rel. Dept. of Pub. Safety & Corr., 2007-1060 (La.App. 3 Cir. 1/30/08), 974 So.2d 919.
ASSIGNMENT OF ERROR NO. 6:
A summary judgment is not a substitute for trial!,] and the trial court may not make a judicial determination of subjective facts such as credibility, motive, intent, good faith or knowledge where these issues are contested. King v. Illinois Nat. Ins. Co., 2008-1491 (La. 2009), 9 So.3d 780; Edwards v. Larose Scrap & Salvage, Inc., 2010-596 (La. App. 3 Cir. 12/8/10), 52 So.3d 1009.
14ASSIGNMENT OF ERROR NO. 7:
A suit for malicious prosecution can be disposed of only by a finding of an absence of probable cause which requires a denial by the defendant in his answer and the introduction of relevant evidence to defeat the claim. See, Schmidt v. Conservative Homestead Ass’n, [181 La. 369] 159 So. 587 (La. 1935).
STANDARD OF REVIEW
“Appellate courts review summary judgment de novo, using the same criteria that govern the trial court’s consideration of whether summary judgment is appropriate, and in the light most favorable to the non-movant.” Yokum v. 615 Bourbon Street, L.L.C., [2007-1785,] p. 25 (La.2/26/08), 977 So.2d 859, 876 (citing Suire v. Lafayette City-Parish Consol. Gov’t, 04-1459 (La.4/12/05), 907 So.2d 37). Louisiana Code of Civil Procedure Article 966(A)(2) states “[t]he summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action,” and this “procedure is favored and shall be construed to accomplish these ends.” “[I]f the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact,” then judgment shall be granted as a matter of law in favor of the mover. La.Code Civ.P. art. 966(B) and (C).

Kleinman v. Bennett, 11-947, p. 2 (La. App. 3 Cir. 12/7/11), 80 So.3d 689, 691-92.

DISCUSSION

Though Edwards assigns seven errors, these assignments present four issues: 1) whether this court’s prior opinion in this case triggers the law of the case doctrine; 2) whether the trial court can, on its own, cause the clerk to notice a follow-up hearing on the Defendants’ motion for summary judgment after this court’s reversal and remand of Defendants’ initial motion for summary judgment; 3) whether the trial court can reurge and reconsider the same issues in the subsequent summary judgment proceeding; and, 4) whether Defendants were required to file an answer with affirmative defenses and/or an affidavit in support of their motion for summary judgment. Edwards’ remaining assignments of error (number five, six, and seven) contain merely statements of law which do not state specific issues or errors and, therefore, will not be considered.

I sLaw of the Case

In this first assignment of error, Edwards asserts that the law of the case doctrine prohibits the trial court from reconsidering its prior decision. We find Edwards’ reliance upon this doctrine to be misplaced. In the previous appeal of this matter, this court reversed and remanded the matter to the trial court. Our reversal of the trial court’s grant of summary judgment was based on its improper reliance upon a collateral deposition. This court did not make any pronouncement on the merits of the case or the evidence presented at the hearing; instead, this court remanded the matter to the trial court for a reexamination of admissible evidence. There was no law of the case. Subsequent to the remand, Mr. Edwards’ deposition was taken again and then submitted at the second hearing on the motion for summary judgment. Hence, the defect stemming from the trial court’s grant of the initial summary judgment was cured. This assignment of error is without merit.

Resetting the Motion for Summary Judgment

In this assignment of error, Edwards contends that the trial court “may not[,] upon its own motion[,] notice for hearing a motion for summary judgment!/]” Citing La.R.S. 13:581 and La.Code Civ.P. art. 194, Larose and Cummings, in brief, counter that “[i]t is within his inherent powers as a district judge to enter such an order.”

This court remanded the matter to the trial court for further proceedings. Edwards did not object to the trial court proceeding with the hearing of the motion Infer summary judgment. See Prince v. Palermo Land Co., Inc., 05-1399 (La.App. 3 Cir. 5/3/06), 929 So.2d 831. Therefore, we find no merit to this assignment.

Reurging the Motion for Summary Judgment

Edwards argues, in brief, that “[because the [trial court] on its own re-urged the motion for summary judgment two (2) days after the Order of remand was issued!,] there is no question that the record was not adequately supplemented.” Further, “[although appellees did file a new deposition in support of this motion, the deposition supports appellant’s claims by confirming the allegations of the petition, including the fact that Long Island’s tenant abandoned these movables in the warehouse when it went out of business.” Edwards’ deposition testimony shows that when Larose amended its suit to include claims against Edwards in the 2003 litigation, from which the present litigation was spawned, he had no judicial authority to sell the property. In his deposition, Edwards admits that neither he nor his company owned the property that he sold to Larose. We find no error in the trial court’s finding that this admission is sufficient to defeat Edwards’ claims against Larose for defamation and malicious prosecution.

Edwards’ third assignment of error reiterates his contention that the trial court erred by reconsidering the motion for summary judgment filed by Larose and Cummings. For the same reasons set forth by this court relative to the new deposition of Edwards being introduced into evidence and the procedural defect that existed which was subsequently cured, we find no merit to this assignment of error.

Necessity of Filing an Answer in a Summary Judgment Proceeding

Edwards contends that Larose and Cummings were required to file an answer before filing their motion for summary judgment and “suggests] that [they] have not filed an answer in an effort to prevent discovery; discovery which |7will confirm the factual allegations in the petition.” As previously stated by this court, “La.Code Civ.P. art. 966(A) provides that a defendant’s motion for summary judgment may be made at any time. There is no requirement that an answer be filed prior to defendant’s motion for summary judgment.” Edwards, 52 So.3d at 1012. We find no merit to this assignment of error.

Propriety of the Trial Court’s Grant of Summary Judgment

Edwards’ appeal generally questions the propriety of the trial court’s grant of summary judgment in favor of Larose and Cummings. Larose and Cummings assert that Edwards failed to produce any factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial as to malicious prosecution or defamation; therefore, the trial court correctly determined that there were no genuine issues of material fact and that they were entitled to judgment as a matter of law. To address this inquiry, we must first set forth the evidentiary requirements necessary to prevail on a motion for summary judgment relative to Edwards’ claims of malicious prosecution and defamation.

Larose and Cummings, as the movants herein, bear the initial burden of proof and must show that no genuine issue of material fact exists. See La.Code Civ.P. art. 966(C)(2). If Larose and Cummings successfully meet their burden, then the burden shifts to Edwards to present factual support adequate to establish that he will be able to satisfy his evidentiary burden at trial. Id. If Edwards fails to produce the factual support necessary to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact. Id.

A fact is material if it potentially insures or precludes recovery, affects a litigant’s ultimate success, or determines the outcome of the legal dispute. Smith v. Our Lady of the Lake Hosp., Inc., 93-2512, p. 27 (La.7/5/94), 639 So.2d 730, 751. A genuine issue is one as to which reasonable persons could disagree; if reasonable persons could reach only one conclusion, there is no need-for trial on that issue and summary judgment is appropriate. Id.

Hines v. Garrett, 04-806, p. 1 (La.6/25/04), 876 So.2d 764, 765-66. ■

In Finnie v. LeBlanc, 03-1013, p. 9 (La.App. 3 Cir. 3/10/04), 875 So.2d 71, 78, (quoting Winn v. City of Alexandria, 96-492, p. 5 (La.App. 3 Cir. 11/20/96), 685 So.2d 281, 284), this court set forth the elements of a malicious prosecution claim:

(1) the commencement or continuance of a criminal proceeding; (2) its legal causation by the present defendant against plaintiff, who was [the] defendant in the original ... proceeding; (3) its bona fide termination in favor of the present ... plaintiff; (4) the absence of probable cause for such proceeding; (5) the presence of malice therein; and (6) damages.

Finnie also sets forth the elements of a defamation claim as follows: “(1) a false and defamatory statement concerning another; (2) an unprivileged publication to a third party; (3) fault (negligence or greater) on the part of the publisher; and (4) resulting injury.” , Id., at 79 (quoting Fitzgerald v. Tucker, 98-2313, p. 10 (La.6/29/99), 737 So.2d 706, 715).

As to malicious prosecution, Edwards presented no proof of any criminal proceeding or malice. Hence, Edwards failed to satisfy his burden of proof as to at least two essential elements of the tort of malicious prosecution. As to defamation, Edwards failed to prove that Defendants made “false and defamatory statement[s]” or that their actions constituted fraud.

In order to show that there is genuine issue of material fact that would preclude Larose and Cummings from successfully pursuing their motion for summary judgment, Edwards must show evidence that he will carry the applicable burden of proving all six elements of malicious prosecution and all four elements of defamation as set forth in Finnie. Edwards did not offer proof of any criminal proceeding or malice; hence, he failed to satisfy his burden of proof as to at least two essential elements of the tort of malicious prosecution. As to defamation, [^Edwards did not offer proof that Larose and Cummings made “false and defamatory statements]” or that their actions constituted fraud. Edwards did not offer proof of malice, actual or implied, or other fault. We find that Edwards would not carry his burden of proof as to all of the elements of these two torts; therefore, there is no question of material fact, and Larose and Cummings are entitled to a judgment as a matter of law. Accordingly, we affirm the trial court’s grant of summary judgment.

DECREE

For the foregoing reasons, the motion for summary jddgment granted in favor of Defendants, Larose Scrap & Salvage, Inc. and Paul Cummings, is affirmed. Costs of this appeal are assessed against Plaintiff, R. Chadwick Edwards, Jr.

AFFIRMED.

THIBODEAUX, Chief Justice, concurs and assigns reasons.

THIBODEAUX, Chief Judge,

concurring.

hi agree with the result reached by the majority. I disagree, however, with the language regarding the burden of proof. It is true that the movants, Larose and Cummings, had initial burden of proof in showing the nonexistence of genuine issues of material facts. Once that is met, the burden of proof does not shift to Edwards. Rather, the burden of production shifts to Edwards to demonstrate that he could satisfy his evidentiary burden at trial, and not that he would be able to satisfy that burden. Ultimate burden of proof always remains with the movant and never shifts. See David W. Robertson, Summary Judgment and Burden of Proof, 45 La.B.J. 381 (1997).

For the foregoing reasons, I respectfully concur.

      . Under the "law of the case” doctrine, “courts of appeal generally refuse to reconsider their own rulings of law on a subsequent appeal in the same case.” Pumphrey v. City of New Orleans, 05-979, p. 7 (La.4/4/06), 925 So.2d 1202, 1207 (citing Pitre v. La. Tech Univ., 95-1466 (La.5/10/96), 673 So.2d 585; Garrison v. St. Charles Gen. Hosp., 03-423 (La.4/25/03), 845 So.2d 1047 (per curiam)).


source: Caselaw Access Project

author: PETERS, J.

license: Public Domain

text:
    Crystal SMITH, et al. v. CAPPAERT MANUFACTURED HOUSING, INC., et al.
    No. CA 11-1464.
    Court of Appeal of Louisiana, Third Circuit.
    April 10, 2012.
    Rehearing Denied May 30, 2012.

      Fred A. Pharis, Pharis Law Offices, Alexandria, LA, Hon. Jerold Edward Knol, The Knoll Law Firm, L.L.C., Marksville, LA, for Plaintiffs/Appellees, Barbara Thronson, Gary Thronson, Judy St. Ro-main, Rodney St. Romain.
    Albert Dale Clary, Adrian G. Nadeau, Mark L. Barbre, Long Law Firm, L.L.P., Baton Rouge, LA, for Defendant/Appellant, Cappaert Manufactured Housing, Inc.

      Court composed of OSWALD A. DECUIR, JIMMIE C. PETERS, and J. DAVID PAINTER, Judges.
   PETERS, J.

| j This appeal arises from a suit in redhi-bition filed by Gary and Barbara Thronson and Rodney and Judy St. Romain against Cappaert Manufactured Housing, Inc. (Cappaert), the manufacturer of the homes at issue. Cappaert now appeals the trial court’s judgment rescinding both sales and awarding the plaintiffs monetary damages. For the following reasons, we amend the trial court’s award of damages to the Thronsons by giving Cappaert credit for the rental income the Thronsons received after they vacated the home and affirm the trial court’s judgment as amended.

REVIEW OF THE RECORD

The St. Romains bought their home in 1998, and the Thronsons purchased then-home in 2008. The original purchase price for the St. Romains’ home was $56,710.00, and the Thronsons paid $26,500.00 for their home. In their January 81, 2005 petition for personal injury damages and recission of the sale, the plaintiffs’ main complaint centered around the fact that mold and mildew had become a major problem inside the homes. Expressed in its simplest terms, the mold and mildew complaints related primarily to problems with a vinyl wall covering on the living-space side of each home’s walls. When the air conditioning system cooled the home’s interior, the hot and humid air that entered the wall cavities from the outside would condense as it pressed against the cooled vinyl wall. The moisture that condensed in the wall cavities sustained the growth of mold and mildew. However, the plaintiffs did not assert that the mold and mildew problems were caused solely from the use of the vinyl wall covering on the inside of the walls. They also suggested that other manufacturing defects existed which allowed an 12excess of moist outside air to come into the wall cavities. These included leaky air-conditioning ductwork, which created a negative pressure in the house, pulling in more moist outside air, and that there existed a lack of return air pathways.

A bench trial resulted in a judgment granting the Thronsons and the St. Ro-mains recission of the sale of their homes and awarding them finance charges, judicial interest, and attorney fees. After the trial court rejected its motion for a new trial, Cappaert perfected this appeal. In its appeal, Cappaert asserts eight assignments of error: 1) the judgment is an absolute nullity, 2) federal HUD standards for manufactured homes preempt Louisiana’s law of redhibition, 3) the trial court wrongly interpreted HUD regulations, 4) the plaintiffs’ claims were prescribed, 5) the trial court erred in not considering Cappaert Manufacturing Housing’s expert witnesses’ testimony and erred in relying on testimony from the plaintiffs’ expert witness, 6) the award of both contractual and judicial interest was an improper double recovery, 7) the plaintiffs’ awards should have been reduced because the plaintiffs lived in or rented their homes through the date of trial, and 8) the trial court erred in finding a redhibitory defect in the St. Romain home.

OPINION

Assignment of Error Number One

Cappaert argues in its first assignment of error that the trial court judgment is an absolute nullity because the presiding judge’s pro tempore assignment had ended before the judgment was issued. This issue arises because the matter was initially set for trial before Judge William J. Bennett, but Judge Ronald D. Cox actually heard the trial pursuant to a Louisiana Supreme Court appointment “as judge pro tempore ... effective for the dates of May 2, 2011 through May 6, 2011, ^subject to the completion of unfinished business.” Cappaert argues that, because Judge Cox was appointed as a judge pro tempore, rather than an ad hoc judge, those actions in the litigation which took place after May 6, 2011, were void.

The change in judges came about because at a status conference held on May 2, 2011, the day before trial, the parties were informed that Judge Bennett’s father was to undergo surgery, and Judge Cox would replace him. Jury selection began on May 3, 2011, and the jury trial itself began the next day. Two days thereafter, all the claims of the remaining plaintiffs in the litigation were settled except for the redhibition claims of the Thronsons and the St. Romains. Judge Cox dismissed the jury at this point, and these remaining claims moved forward as a bench trial.

After Judge Cox dismissed the jury on May 4, 2011, he continued hearing the redhibition claims until May 10, 2011. Judge Cox ultimately rendered written reasons for judgment on May 24, 2011, and executed a written judgment on June 3, 2011. Cappaert then filed a motion for new trial, which Judge Cox rejected on July 1, 2011. As his final act in the litigation, Judge Cox signed an order granting Cappaert’s appeal on September 2, 2011.

Louisiana Constitution Article Five, Section Five, (A) provides that “[t]he supreme court has general supervisory jurisdiction over all other courts. It may establish procedural and administrative rules not in conflict with law and may assign a sitting or retired judge to any court.” (Emphasis added.) While it is true that the supreme court’s appointment of Judge Cox carried a basic time period |4from May 2 through May 6, 2011, it also provided that the appointment would be extended “subject to the completion of unfinished business.” The conclusion of the ongoing trial, the issuance of written reasons for judgment, the rendering of a judgment, the decision on the motion for new trial, and the grant of a devolutive appeal to this court are all “unfinished business” from this case.

We find no merit in this assignment of error.

Assignment of Error Number Two

Next, Cappaert asserts that the federal Housing and Urban Development (HUD) standards preempt Louisiana redhibition law for the plaintiffs’ allegations regarding the vinyl wall covering. We find no merit in this assignment of error as well.

Federal provisions may preempt state law under the theories of express preemption, field preemption, and conflict preemption. Cappaert alleges that the plaintiffs’ state law claims for recission of the sales must be dismissed because of conflict preemption, which occurs “when it is impossible to comply with both the federal and state provisions or when application of state law stands as an obstacle to the accomplishment and execution of Congress’s full objectives and purposes.” Ba- don v. R.J. Reynolds Tobacco Co., 05-1048, p. 8 (La.App. 3 Cir. 7/12/06), 934 So.2d 927, 933.

In making its argument on this issue, Cappaert directs us to 42 U.S.C.A. § 5403(d), which states in pertinent part that:

[w]henever a Federal manufactured home construction and safety standard established under this chapter is in effect, no State or political subdivision of a State shall have any authority either to establish, or to continue in effect, with respect to any manufactured home covered, any standard regarding the construction or safety applicable to the same aspect of performance of such manufactured home which is not identical to the Federal manufactured home construction and safety standard. Federal preemption under this subsection shall be broadly and liberally construed to ensure that disparate State or local requirements or standards do not affect the [^uniformity and comprehensiveness of the standards promulgated under this section nor the Federal superintendence of the manufactured housing industry as established by this chapter.

We note, however, that 42 U.S.C. § 5409(c) states that “[cjompliance with any Federal manufactured home construction or safety standard issued under this chapter does not exempt any person from any liability under common law.” Thus, while Louisiana may not establish its own standards for construction of manufactured housing if they differ from the federal law, claims under state law, including one for recession of a sale, may be brought so long as they advance non-compliance with existing federal regulations or non-compliance with state standards that are not preempted by federal regulations. In Re: FEMA Trailer Formaldehyde Products Liability Litigation, 620 F.Supp.2d 755 (E.D.La.2009).

Louisiana Revised Statutes 51:911.23(B), which governs redhibitory actions for manufactured homes, specifically provides that “[i]n any redhibitory action brought against the seller of a manufactured home or mobile home, the standards set forth in the [National Manufactured Housing Construction and Safety Standards Act of 1974, 42 U.S.C. 5401 et seq.] shall be considered in establishing and determining whether or not a defect exists.” In the matter now before us, the plaintiffs’ redhi-bition claims are based on the assertion that Cappaert did not comply with the federal standards, specifically 24 C.F.R. § 3280.303, which states, in pertinent part:

(a) Minimum requirements. The design and construction of a manufactured home shall conform with the provisions of this standard. Requirements for any size, weight, or quality of material modified by the terms of minimum, not less than, at least, and similar expressions are minimum standards. The manufacturer or installer may exceed these standards provided such deviation does not result in any inferior installation or defeat the purpose and intent of this standard.
h(b) Construction. All construction methods shall be in conformance with accepted engineering practices to insure durable, livable, and safe housing and shall demonstrate acceptable workmanship reflecting journeyman quality of work of the various trades.

When faced with a nearly identical claim of redhibition in a sale of a manufactured home, the court in Whittington v. Patriot Homes, Inc., 2008 WL 1736824 (W.D.La. 2008), held that although the issue of whether the vapor barrier (in this case the vinyl wall) should have been placed on the exterior side of the external walls is preempted by 24 C.F.R. § 3280.504(b), the plaintiffs’ claims that were based on allegations that there was excessive duct leakage, leading to excess outside air and moisture entering the house, were not preempted by federal law. We find this decision persuasive. The plaintiffs before us assert claims for redhibition under Louisiana law that rely on defects other than the vinyl wall’s placement on the inside of the exterior walls, and these claims are not preempted by the federal regulations governing the design and safety of manufactured homes.

Assignment of Error Number Three

In this assignment of error, Cappaert asserts that the trial court erroneously disregarded HUD’s own interpretations of its regulations. Cappaert bases this argument on the trial court’s conclusion that compliance with 24 C.F.R. § 3280.504, which regulates wall construction standards in manufactured homes, does not inherently constitute compliance with 24 C.F.R. § 3280.303.

When Cappaert built the plaintiffs’ homes, the governing standards for “[c]on-densation control and installation of vapor retarders,” 24 C.F.R. § 3280.504(b), provided, in pertinent part:

(b) Exterior walls.
(1) Exterior walls must have a vapor retarder with a permeance no greater than 1 perm (dry cup method) installed on the living space side of the wall[.]

[yThus, at that point in time, the HUD regulations specifically allowed Cappaert to install a vinyl wall covering on the living space side of the exterior walls. 24 C.F.R. § 3280.504(B)(1). The plaintiffs do not dispute the fact that this HUD regulation allows the use of vinyl wall covering. Despite acknowledging this fact, the plaintiffs still argue that the construction of the two homes nevertheless violated 24 C.F.R. § 3280.303(b). That regulation, which governs general construction standards, states:

Construction. All construction methods shall be in conformance with accepted engineering practices to insure durable, livable, and safe housing and shall demonstrate acceptable workmanship reflecting journeyman quality of work of the various trades.

24 C.F.R. § 3280.303(b)

The plaintiffs asserted, and the trial court found, that Cappaert violated this standard in its construction of the plaintiffs’ homes. Specifically, in a humid climate such as South Louisiana, the use of the vinyl wall covering coupled with other defects that cause excess warm, moist air to enter the wall cavities, can cause problems with condensation, which leads to the growth of mold and mildew.

On appeal, Cappaert argues that HUD interprets its rules to conclude that compliance with 24 C.F.R. § 3280.504(B)(1) precludes a finding that the homes did not meet the acceptable workmanship standards found in 24 C.F.R. § 3280.303(b). In support of its argument, Cappaert introduced a letter, dated January 19, 2007, from William W. Matchneer, III, an associate deputy assistant secretary for Regulatory Affairs and Manufactured Housing, to Brian D. Cooney, the vice president of government affairs at the Manufactured Housing Institute in Arlington, Virginia. The letter reads as follows:

Following up on our December meeting with you and your colleagues, we have had a chance to review the plaintiffs’ pleadings you have provided us on various vapor barrier cases. As the HUD official responsible for the enforcement of the Manufactured Home Construction and Safety Standards, I can say that these pleadings |scompletely misrepresent HUD enforcement policy by arguing that HUD’s general standard at 3280.303(b) should be applied to manufacturers’ practices regarding the placement of vapor barriers even though these manufacturers have complied with HUD’s more specific vapor barrier standard at 3280.504(b).
Consistent with basic principles of administrative law, it is HUD’s practice to hold manufacturers accountable for compliance with the standard that most specifically applies to a particular aspect of construction. Accordingly, there is no case in which HUD has applied 3280.303(b) to a manufacturer that has complied with 3280.504(b).
Thank you again for bringing this situation to our attention. HUD has a distinct interest in maintaining an accurate understanding by arbitrators and the courts of HUD’s enforcement policies regarding the Manufactured Home Construction and Safety Standards. We would be especially concerned by a reported judicial decision that misstated HUD policy and practice, so please keep us apprised of development in these cases.

The general rule is that “[a] reviewing court should afford considerable weight to an administrative agency’s construction and interpretation of its rules and regulations adopted under a statutory scheme that the agency is entrusted to administer, and its construction and interpretation should control unless they are found to be arbitrary, capricious, or manifestly contrary to its rules and regulations.” Forbes v. Cockerham, 08-762, p. 33 (La.1/21/09), 5 So.3d 839, 859. However, the letter, which purports to set out HUD’s interpretation of the regulations, does not address the specific issues before this court in this lawsuit. It only addresses situations in which the homeowner’s sole complaint is that the vapor barrier was installed on the inside living surface of the wall. In the case before us, the homeowners claim that there were other causes of the mold and mildew: faulty wall construction and design; unsealed wall cavity penetrations allowing hot, humid air into the wall cavity; crushed, improperly constructed air conditioning ducts; miscut air conditioning vents; and a lack of return air |9pathways. Thus, even assuming that this letter set out the proper interpretation of HUD standards, it does not affect the issues before us.

We find no merit in this assignment of error.

Assignment of Error Number Four

In this assignment of error, Cappaert argues that the trial court erred in not finding that the plaintiffs’ claims were prescribed pursuant to the one year prescription period provided for in La.Civ.Code art. 2534. Specifically, Cappaert contends that the evidence establishes that more than one year had lapsed between the time that the plaintiffs had knowledge of the moisture in their homes and the filing of their lawsuit.

The record reflects that on September 24, 2007, Cappaert filed a peremptory exception of prescription as to the St. Ro-mains’ redhibition and personal injury claims, and on October 3, 2007, filed a similar exception as to the Thronsons’ red-hibition and personal injury claims. The trial court held a hearing on these exceptions on November 30, 2007, and the trial court minutes of that day state that six individuals, including Gary Thronson and Rodney and Judy St. Romain, testified. The minutes further state that the trial court rejected the exceptions with | lnoral reasons. The trial court minutes of December 19, 2007, state that the trial court executed a judgment on that day in accordance with its oral reasons rendered on November 30, 2007. What the record before us does not contain is a transcript of the November 30, 2007 hearing, a copy of the trial court’s oral reasons for judgment, nor a copy of the December 19, 2007 judgment.

When perfecting its appeal, Capp-aert designated those portions of the lower court record it desired to constitute the record on appeal, pursuant to La.Code Civ.P. art. 2128. However, Cappaert did not designate the hearing on the exceptions, the trial court’s reasons for judgment, or the judgment on the exceptions as a part of the appeal record. Louisiana Code of Civil Procedure Article 2128 states that when an appellant designates the portions of the record it desires to constitute the record on appeal, either “a party or the trial court may cause to be filed thereafter any omitted portion of the record as a supplemental record.” However, this court is not given the authority under that article to designate a portion of the trial court record as a supplemental record. Accordingly, we are bound to presume that the trial court’s decision on the peremptory exceptions of prescription were “correct and supported by sufficient competent evidence.” Boulet v. Foti, 539 So.2d 843, 845 (La.App. 3 Cir.), writ denied, 541 So.2d 841 (La.1989).

Assignment of Error Number Five

Cappaert argues in this assignment of error that the trial court erred when it gave little weight to the testimony of its expert witnesses (Harold Lloyd Mouser, Michael Zieman, and John Stephen Verett) and instead relied on the plaintiffs’ expert witnesses (Bobby Parks and Sammy James Hoover) in reaching its factual 1 nfindings. Cappaert bases this argument on the assertion that Mr. Parks’ testimony was “unreliable.”

Louisiana Code of Evidence Articles 701 through 706 govern the use of expert witnesses. With regard to the relationship between the trial court and the expert witness, La.Code Evid. art. 702 provides:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

It is well-settled that “[t]he effect and weight to be given expert testimony is within the broad discretion of the trial judge.” Pendleton v. Barrett, 97-570, p. 4 (La.App. 3 Cir. 12/23/97), 706 So.2d 498, 501. We also recognize that a trial court is not bound by expert testimony; after weighing and evaluating the expert testimony the court has the power to substitute its own judgment and common sense for the conclusion of an expert witness where the evidence as a whole warrants doing so. Ryan v. Zurich Am. Ins. Co., 07-2312 (La.7/1/08), 988 So.2d 214. Most importantly, “[w]here the testimony of expert witnesses differ, it is for the trier of fact to determine the most credible evidence and a finding of fact in this regard will not be overturned absent manifest error.” Opelousas Prod. Credit Ass’n v. B.B. & H., Inc., 587 So.2d 812, 814 (La.App. 3 Cir.1991) (citing Nailor v. Int’l Harvester Co., 430 So.2d 784 (La.App. 5 Cir.), writ denied, 437 So.2d 1148 (La.1983)).

All five individuals cited by Capp-aert in this assignment of error were accepted by the trial court as expert witnesses. The trial court recognized Mr. Hoover, a Baton Rouge, Louisiana Deputy State Fire Marshall who heads the HUD consumer complaint program for Louisiana, as an expert in HUD compliance. Mr. Parks, a West Monroe, Louisiana resident and owner of Health Homes of | ^Louisiana, a consulting firm that works with six manufactured housing builders in recognizing and fixing problems, was recognized by the trial court as an expert in building science as it pertains to moisture identification and cause and effect in the construction of homes; in HVAC (air conditioning) operation, performance, design, and sizing; mold testing, remediation and analysis of samples; and on portions of the HUD code that pertains to the performance standards of manufactured homes. The trial court accepted Mr. Mouser, a Vicksburg, Mississippi consultant, as an expert in field inspections on behalf of manufacturers, in the knowledge of manufacturers’ costs to cure a sub-standard building, in the installation of manufacturers’ homes, and in compliance with the manufacturers’ instructions and field inspections of installations. Mr. Zieman, a resident of Long Beach, California, and president of RADCO, a company that performs consulting, engineering, and laboratory testing, was recognized by the trial court as an expert in mechanical engineering, manufactured homes, air conditioning design and inspections, and design and inspection for HUD homes. Finally, the trial court recognized Mr. Verett, a consultant with Environmental Measurements Corporation, as an expert in industrial environmental quality, including sampling for mold, interpreting laboratory data from mold samples, and in determining the source of mold.

Mr. Hoover testified that he first visited the St. Romain house on April 15, 1999, and in September of 2003, was still looking for- the root causes of the problems with the homes Cappaert built. On September 8, 2003, the St. Romains complained to his office that mold had appeared in three closets, and that despite having cleaned it twice before, the mold had returned. Additionally, mold had begun to manifest itself in the bedroom. These complaints were verified by an October 6, 2003 on-site visit by Roger Smith, an inspector working for Mr. Hoover. | ^Cappaert made some unsuccessful attempts to rectify the problems, but on January 14, 2004, Mr. Hoover found it necessary to impose a fine on Cappaert for not making repairs to the St. Romain home. On October 26, 2004, Mr. Hoover found evidence of high moisture in the wall boards in a guest bedroom and the master bathroom.

Mr. Hoover was of the opinion that over-sizing the air conditioning system could lead to moisture problems because the unit would not run long enough to dehumidify the air. In February of 2005, Mr. Hoover sent the St. Romains a letter informing them that he was going to turn over his file on their issues to HUD and that they should consider suing Cappaert. He then closed his file and had no further involvement with the issues now before the court.

Mr. Parks became involved in 2004, when Mike Camerasano, the acting president of the Manufactured Housing Commission from West Monroe, Louisiana, asked him to examine seven homes, identify the primary reasons for moisture problems, and recommend corrective measures. The St. Romain home was one of the seven.

According to Mr. Parks, the moisture problems in the plaintiffs’ homes was not caused solely by the vinyl wall covering. Rather, he opined that it was caused by the outer shell of the houses allowing too much moist air into the wall cavities. He asserted that when the warm moist air came in contact with the vinyl-covered wall boards (which had become chilled by the air conditioning inside the homes), condensation occurred inside the wall cavities. Mr. Parks explained that because the wall cavities were not well ventilated, there was no way for the walls to dry out after they became wet from the condensation, and mold occurred. According to Mr. Parks, the vinyl wall covering would not have been a problem if the outer shell | uof the houses had prevented moisture from coming into the wall cavities in the first place, or if there was some way to vent the moist air. Mr. Parks identified leaky air conditioning ducts as another cause of the moist air entering the wall cavities and explained that that when the air conditioning ducts leak excessively, they create negative pressure inside the house and pull more warm, moist air into the home. He did acknowledge, however, that an oversized air conditioning systems, which would not be attributable to Cappaert, could contribute to moisture in the homes.

When Mr. Parks inspected the St. Ro-mains’ home in 2004, the St. Romains had their original four-ton air conditioning system. He found that an I-beam had crushed some of the ductwork in the home and that the home had considerable duct leakage, causing the home to depressurize at a significant rate with reference to the outdoors. Photographs taken in June of 2004, revealed the presence of visible mold on the ceiling and walls. Mr. Parks observed additional fungal growth around a few light switches and around the top of some molding. He also noticed some leaking along the wall where the two sides of the manufactured home were joined together. Photos taken by him in February of 2007, showed the ceiling starting to crack and mold and light switches pulling out of the walls from the moisture content in the walls.

When Mr. Parks returned to the St. Romain home on June 5, 2007, the St. Romains had replaced the original air conditioning unit with an oversized, five-ton air conditioning system. During his inspection, Mr. Parks found moisture in the walls and took samples of the trapped air. Those samples, together with trapped mold spores he recovered, were sent to a laboratory for analysis. He observed that none of the problems he had observed in 2004, had been corrected. In fact, they were getting progressively worse. During his inspection on this date, he peeled the |,.svinyl wall covering off some of the walls to observe how the wall cavity performed. In doing so, he discovered that only the outside and mating walls had an elevated moisture content.

When he returned for another inspection in 2008, Mr. Parks observed that the problems were still present. In his opinion, the mold growth was so extensive that to remedy the situation would require a major rebuild. His 2009 inspection revealed that the moisture levels varied depending on the presence or absence of the vinyl wall covering. On those walls where the vinyl wall board was intact, moisture remained. On those walls where the vinyl wall board had been removed, the moisture levels were nonexistent.

With regard to the Thronsons’ home, Mr. Parks inspected the premises in 2007, and found that the home had duct leakage and depressurization inside the wall cavities. Mold samples taken at that time revealed an excess mold spore count, and the inspection showed that the walls had significant moisture accumulating inside them.

Mr. Parks testified that, in his opinion, the quality of construction on both the plaintiffs’ homes was generally sub-par. He did not find their construction to be in compliance with the HUD general quality standard of a quality, safe product. According to Mr. Parks, the primary issues causing the moisture problems related to Cappaert’s failure to properly construct the wall cavities, the severe air conditioning duct leakage, and the improper air pathways. Mr. Parks testified that all of these problems were manufacturing defects.

Mr. Mouser testified that he had spent thirty to thirty-five years of his career working with manufactured housing and that from 1995 until 2004, he had been employed by Cappaert in charge of the quality control program. At the time he 11fitestified, he was still associated with Cappaert as a consultant on compliance and quality control coordination.

Mr. Mouser first inspected the St. Ro-mains’ home on February 8, 2007. He testified that during his inspection, he observed areas of moisture problems in two bedrooms and one bedroom closet, floor discoloration around the location of the original air conditioning unit, and ceiling stains in two guest bedrooms. Mr. Mouser also observed that front, back, and side porches had been added to the home, causing penetrations into the outside wall. Additionally, according to Mr. Mouser, the slope of the side porch caused water to drain toward the home instead of away from it. He found that some of the duct work was not sealed and that the wall around where the original HVAC system had been placed was crumbly and soft. Mr. Mouser agreed with Mr. Parks that some of the ductwork was crushed, that this defect was a manufacturing defect, and that it would cause problems. According to Mr. Mouser, leaking ducts would cause pressure and balance problems, but when he performed his inspection, the whole house ventilation system had been removed. He noted that in 1999, or the year after the St. Romains purchased their home, Cappaert had added ten ventilation vents to the roof to help with condensation. Mr. Mouser opined that this lack of proper ventilation was the result of a mistake at the factory.

A few months later, on June 1, 2007, Mr. Mouser inspected the Thronsons’ home. In performing his inspection, he observed humidity deflections on the front walls in the front bedroom and all down the hall. However, he found no moisture problems within the wall when he removed the electrical outlets from the wall. Mr. Mouser suggested that the home thermostat was affected by its closeness to the refrigerator, and that the air conditioning unit did not have the air intake hose Improperly attached. This latter defect, according to Mr. Mouser, contributed to the influx of humid outside air. Mr. Mouser testified that there existed general problems with duet leakage in this class of homes because of manufacturing defects.

Mr. Zieman testified that he examined neither home at issue in this litigation but that he had investigated similar complaints from 2004 through 2007. He disagreed with Mr. Parks’ methods of investigating and measuring the air conditioning pressure systems and suggested that the HUD standards did not have a performance requirement concerning an excessive ventilation rate or leaky construction of duct works. Mr. Zieman attributed all the problems with the St. Romain home to the installation of the larger air conditioning unit, which he suggested was not properly connected and which would have an impact on the moisture and condensation in the home. In his opinion, the too-large air conditioning unit left too much humidity in the air and created high pressure in the ducts, causing them to leak. He also suggested that the moisture problems in the St. Romain home could have been caused by an improper seal on the mating wall and said that this would not be a manufacturing defect. In his opinion, the St. Ro-main home suffered no HUD code violations during the manufacturing process.

With regard to the Thronson home, Mr. Zieman suggested that the moisture was able to come into the home through a hole in the floorboards caused when the new air conditioner was installed. Mr. Zieman testified that if a manufacturer followed HUD standards, there would not be excessive condensation.

Citing to a 2008 or 2009 American Industrial Hygiene Association document, Mr. Verett criticized Mr. Parks’ wall-cavity samples, stating that the methods used were imprecise and non-reliable and that Mr. Parks’ samples were 11stoo small to be reliable. According to Mr. Verett, the mere existence of mold does not in itself indicate the presence of too much moisture in the home, as some molds grow at low moisture levels. He admitted, however, that he was reluctant to form an opinion about the causes of the mold without a site visit.

In its written reasons for judgment, the trial court made these specific findings:

The Court carefully listened to all witnesses and makes the following observations. The most credible witnesses, besides the plaintiffs who seemed very genuine in their stress and depression from living in such deplorable homes was Sammy James Hoover, the Deputy State Fire Marshall who at the time of these complaints was the compliance officer and handled consumer complaints for the State and Robert Parks, who was hired by the Louisiana Manufactured Housing Commission to examine several of the homes made by Cappaert and report his findings as to the complaints received and problems, if any, that he observed. The Court gave less weight to the testimony of Harold Lloyd Mouser, who had worked for Cappaert and other manufacturers since 1976 and Steven Verret [sic]. The testimony of Mr. Verret [sic] was obviously biased, not supported by other evidence and his conclusions, without ever observing either of these two homes, [were] not believable.

We find no manifest error in the trial court’s reliance on the plaintiffs’ experts rather than Cappaert’s experts, and there is no merit in this assignment of error.

Assignment of Error Number Six

The trial court awarded the St. Romains $109,645.10, stating that this amount “represented] a return of the purchase price and expenses.” The trial court also ordered that legal interest be paid on $56,710.00 of that amount (the purchase price of the home) from the date of sale and on the remaining $52,953.19 from the date of judicial demand. The trial court awarded the Thronsons $35,972.31, “representing a return of the purchase price and expenses.” The trial court also awarded legal interest on $26,500.00 (the purchase price of the home) from the | 19date of sale and legal interest on the remaining $9,472.31 from the date of judicial demand.

In this assignment of error, Capp-aert asserts that by awarding the plaintiffs the return of the contractual interest they had paid in connection with financing the homes and judicial interest on the expenses associated with the sale, which included that contractual interest, the trial court gave the plaintiffs a double recovery. In making its argument, Cappaert cites this court’s opinion in Aucoin v. Southern Quality Homes, 06-979 (La.App. 3 Cir. 2/28/07), 953 So.2d 856, aff'd, in part, rev’d in part, 07-1014 (La.2/26/08), 984 So.2d 685. In Aucoin, however, this court was affirming the trial court’s decision not to award both the actual interest paid and judicial interest and cited no cases in support of its decision. The supreme court did not address this issue in its subsequent opinion. We decline to follow this court’s decision in Aucoin.

When a court grants redhibition of a sale, the contractual interest expended in financing the sale is considered both a recoverable expense occasioned by the sale, La.Civ.Code art. 2531, and an expense incurred for the preservation of the thing, La.Civ.Code art. 2535. Carpenter v. Lafayette Woodworks, Inc., 94-1011 (La. App. 3 Cir. 2/1/95), 653 So.2d 1187. Louisiana Revised Statutes 13:4203 provides for judicial interest from the time that suit was filed on all judgments sounding in damages ex delictu. Accordingly, the trial court did not err in ordering judicial interest from the date that suit was filed on the expenses occasioned by the sales and financing of the homes, which includes the contractual interest they paid due to financing the sales.

We find no merit in this assignment of error.

| ^Assignment of Error Number Seven

In this assignment of error, Cappaert asserts that the trial court should have reduced the plaintiffs’ awards and given it the benefit of a credit for use, since the plaintiffs continued to live in and/or rent their homes from the time of purchase through trial.

Louisiana Civil Code Article 2545 provides that a seller who knows that the item sold has a defect “may be allowed credit” for the buyer’s use of the thing or the fruits it might have yielded. (Emphasis added.) This Article also provides that a seller who is the manufacturer of a thing “is deemed to know that the thing he sells has a redhibitory defect.” Thus, whether to grant Cappaert a credit for any use that the St. Romains or the Thronsons made of their homes is subject to the trial court’s discretion. In order to receive consideration for that credit, the seller must present evidence of the value of the buyer’s use of the property. Brannon v. Boe, 569 So.2d 1086 (LaApp. 3 Cir.1990). Additionally, compensation for the buyer’s use should not be granted automatically since “even the value of an extensive use may be overridden by great inconveniences incurred because of the defective nature of the thing and constant interruptions in service caused by the seller’s attempts to repair.” Alexander v. Burroughs Corp., 359 So.2d 607, 611 (La.1978).

Cappaert presented no evidence concerning the value of the St. Romains’ use of the property. Given the lack of evidence, we find no abuse of discretion in the trial court’s denial of a use credit to Cappaert.

With regard to the Thronsons, the evidence establishes that they moved from their home in the summer of 2004, and they began renting it to Mr. Thron-son’s brother for $329.97 per month. At the time of the May 3, 2011 trial, Mr. hiThronson’s brother and his family were still living there. However, there was also extensive testimony concerning the severe defects in the Thronsons’ home, the numerous repairs it underwent, and all the inconveniences entailed by the defects and the repairs. We conclude that the trial court did not abuse its discretion in denying Cappaert a credit for the Thronsons’ use of the home through the summer of 2004, but that it did abuse its discretion in failing to award Cappaert a credit for the income the Thronsons received from renting their home thereafter. Accordingly, we amend the trial court’s judgment to grant Cappaert a credit of $329.97 per month for the six years and ten months that Mr. Thronson’s brother rented the Thronsons’ home.

Assignment of Error Number Eight

Finally, Cappaert argues that the trial court erred in finding that the St. Ro-mains’ home had redhibitory defects. Specifically, Cappaert asserts that the St. Romains’ evidence was “unscientifically reliable” and that all the air conditioning experts testified that the air conditioning systems, for which Cappaert is not responsible, likely caused any moisture issues.

As we noted in discussing the fifth assignment of error, the trial court did not abuse its discretion by choosing to find the St. Romains’ experts more credible and holding that the St. Romain’s home had redhibitory defects. We find no merit in this assignment of error.

DISPOSITION

For the foregoing reasons, we amend the trial court judgment to give Cappaert Manufactured Housing, Inc., a $27,057.54 credit against the judgment rendered in favor of Gary E. Thronson, II, and Barbara Butrich Thronson. We ^affirm the trial court judgment in all other respects. We assess all costs of this appeal to Capp-aert Manufactured Housing, Inc.

AFFIRMED AS AMENDED.

      . The initial suit involved seven other homeowners and a multitude of people who had visited or temporarily resided in the homes at issue as the plaintiffs, but by the time this matter went to trial, only the Thronsons and the St. Romains had not settled or referred their claims to arbitration.

      . In its brief on appeal, Cappaert asserts that it was not aware that Judge Cox was appointed as a judge pro tempore, as opposed to an ad hoc judge, until it learned that the supreme court’s order was not in the record for appeal. Cappaert notes that the trial court's minutes indicate that an ad hoc judge was presiding. After the trial, Cappaert obtained a copy of the supreme court's order and added it to the record in this matter.

      . Louisiana Civil Code Article 2534 governs prescription in an action for redhibition. It 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 defect was discovered by the buyer, whichever occurs first.
      (2) However, when the defect is of residential or commercial immovable property, an action for redhibition against a seller who did not know of the existence of the defect prescribes in one year from the day delivery of the property was made to the buyer.
      B. The action for redhibition against a seller who knew, or is presumed to have known, of the existence of a defect in the thing sold prescribes in one year from the day the defect was discovered by the buyer.
      C. In any case prescription is interrupted when the seller accepts the thing for repairs and 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.


author: CHARLES R. JONES, Chief Judge.

text:
    8701 OAK STREET, LLC v. Jennie Lee HIGGINBOTHAM, Wife of/and Wilson Johnson.
    No. 2011-CA-1510.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 11, 2012.
    Rehearing Denied May 11, 2012.

      Irl R. Silverstein, David A. Silverstein, The Silverstein Law Firm, APLC, Gretna, LA, for Plaintiff/Appellee.
    Michael J. Hall, Tony Dooley, Hope L. Harper, Shorty Dooley & Hall, LLC, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Chief Judge CHARLES R. JONES, Judge DANIEL L. DYSART, Judge JOY COSSICH LOBRANO).
   CHARLES R. JONES, Chief Judge.

IjThe Appellants, Jennie Lee Higginbotham, wife of/and Wilson Johnson, seek review of the district court’s granting of a motion for summary judgment filed by the Appellee, 8701 Oak Street, LLC. Finding that the district court erred in reasoning that there were no genuine issues of material fact, the judgment of the district court is reversed and the matter is remanded for further review.

This appeal involves a purchase agreement between the parties concerning the property bearing municipal address 8701 Oak Street (the Property), owned by the Appellants. On February 24, 2005, a purchase agreement was executed between the Appellee, Marino Investments, LLC, as purchaser, and Mr. Johnson, as seller, for the Property, for the price of $200,000. The purchase agreement included the following provisions regarding the Appellee’s testing for contaminants on the Property:

Purchaser shall have a period of Ninety (90) days from acceptance thereof to perform all necessary testing and due diligence of the subject properties, solely at its ^expense, and if after completion of said due diligence, the property does not meet the requirement of the Purchaser, in the sole opinion of the purchaser, then this contract shall be null and void, without further obligations on the side of either party.

The closing of the sale of the property was scheduled for June 14, 2005; however, the sale was not completed on that day as scheduled. On October 7, 2007, the Appellants agreed to sell the Property to Marino Investments, LLC, in the .amount of $225,000. The parties entered into an oral compromise agreement in open court. The compromise agreement further provided that:

Defendant [the seller] shall have occupancy of the subject premises up to December 28, 2007, and shall be obligated to remove from said property any items stored thereon of any nature whatsoever, including but not limited to motor vehicles, tires, containsfsic], and personal property.
Defendants shall notify plaintiff [Mari-no] when the removal of the afore described property has been completed in order to allow plaintiff an opportunity to inspect same and upon plaintiffs satisfactory inspection, the closing for the subject property shall be scheduled within five (5) business days thereof ...

However, the Appellee failed to honor its obligation as agreed to between the parties. Thereafter, the Appellants filed a Motion to Enforce Settlement Agreement in the Civil District Court of Orleans Parish, which was granted on December 10, 2008. The Appellee instituted an appeal in this Court, which affirmed the judgment of the district court ordering the enforcement of the settlement agreement between the parties and the sale of the property. Further, the Appellee sought review in the Louisiana Supreme Court, which denied the writ application.

The Appellants again were unable to enforce the sale due to the failure of the Appellee to cooperate. On March 23, 2010, the Appellants filed a second Motion to Enforce Settlement Agreement in the district court, which was granted on | ^¡October 8, 2010. Both Motions to Enforce Settlement Agreement filed by the Appellants in the district court were filed in case # 2005-8989, and were allotted to Division “C”. The parties thereafter proceeded to the closing of the sale, and scheduled a closing date of January 31,

2011, to sign the purchase agreements. However, in the interim, the Appellee requested an inspection of the premises on January, 11, 2011, which was agreed to by the Appellants. After the inspection, the Appellee requested further cleanup of the premises by the Appellants, who completed the cleanup on January 12, 2011.

As previously agreed to by the parties, they were to meet at 1:30 p.m. on January 31, 2011, to complete the sale. However, earlier that day, the Appellants received information from the Appellee informing them that upon another inspection of the Property premises that morning, the Ap-pellee discovered “new oil” and “new environmental contamination” on the premises, and further, that the electrical wiring of the premises was damaged. The Appellee alleged that the Appellants had caused these damages and therefore, requested of the Appellants to oversee and pay for the cost of the repairs and cleanup. The Ap-pellee further informed the Appellants that the Appellee would be entitled to a reduction in the sale price if the Appellants failed to oversee and pay for the costs of removing the newly found “environmental contamination”. With this new information and allegations, the Appellants informed the Appellee that they would not oversee the costs for the cleanup, nor would they agree to the new contractual terms proposed by the Appellee. The Appellants failed to show up for the closing of sale of the property due to the unsolved allegations made by the Appellees earlier that day.

Shortly after January 31, 2011, the Ap-pellee, formerly known as Marino Investments, LLC, formed another company, 8701 Oak Street, LLC, and | ¿transferred all of the property rights owned under Marino Investments, LLC, to 8701 Oak Street, LLC. The Appellants were not aware of this transfer; thus, they did not consent to the transfer. In February, 2011, the Appellee filed a Petition for Declaratory Judgment in case # 2011-2068, which was allotted to Division “G” of the District Court. In March 2011, the Appellants filed their answer to the Appellee’s petition, and in addition, an exception of Lis Pendens and an exception of Res Judi-cata. Thereafter, the Appellee filed a motion for summary judgment alleging that due to the failure of the Appellants to appear for the closing of the sale of the property on January 31, 2011, the purchase agreement between the parties should be deemed nullified. The district court scheduled the hearing for the motion for summary judgment on May 20, 2011, and the hearing on the exceptions filed by the Appellants on June 3, 2011. The district court granted the Appellee’s motion for summary judgment on May 24, 2011, without reasons. The district court did not rule on the exceptions after granting the motion for summary judgment. The Appellants timely filed a writ application, which was converted into a devolutive appeal.

The Appellants raise three (3) assignments of error on appeal:

1) Whether the district court erred in failing to recognize genuine issues of material facts present, which precluded summary judgment;
2) Whether the district court erred in granting the Appellee’s motion for summary judgment; and
3) Whether the district court erred in not disposing of ’the Appellants’ exceptions prior to moving forward with the motion for summary judgment hearing.

IsThe Appellee further raises an assignment of error asserting that this appeal is moot due to the property at issue being sold at a sheriffs sale. We pretermit this issue as it is not before this Court.

A motion for summary judgment is a procedural device that avoids a full-scale trial when there is no genuine factual dispute, and should be granted only if pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue as to material fact and that movant is entitled to judgment as a matter of law. Welch v. Zucco, 27,634, p. 3 (La. App. 2 Cir. 12/6/95), 665 So.2d 697, 699, rehearing denied, writ denied, 1996-0438 (La.4/8/96), 671 So.2d 336. Appellate courts review the granting of summary judgment de novo under the same criteria governing the trial courts consideration of whether the summary judgment is appropriate. Hannan v. Barbara Enterprises, Inc., 2011-1328, p. 2 (La.App. 4 Cir. 1/25/12), 83 So.3d 1165, citing Reynolds v. Select Props., Ltd., 93-1480 (La.4/11/94), 634 So.2d 1180, 1183. In evaluating the review of motions for summary judgment, the Court in Welch reasoned:

The mover for summary judgment has the burden of affirmatively showing the absence of a genuine issue of material fact. Any doubt should be resolved against granting the motion. The party seeking a summary judgment must meet a strict standard by showing that it is quite clear as to what the truth is. Any real doubt as to the existence of material fact must be excluded. The papers supporting the mover’s position are to be closely scrutinized while the opposing papers are to be indulgently treated. When the court is presented with a choice of reasonable inferences to be drawn from subsidiary facts contained in affidavits and attached exhibits, reasonable inferences must be viewed in the light most favorable to the party opposing the motion.

| Welch., pp. 3-4, 665 So.2d at 699. Additionally, “a fact is material when its existence or nonexistence may be essential to the petitioner’s cause of action under the applicable theory of recovery; a fact is material if it potentially insures or precludes recovery, affects a litigant’s ultimate success, or determines the outcome of the legal dispute.” Fox v. Heisler, 2003-1964, p. 6 (La.App. 4 Cir. 5/12/04), 874 So.2d 932, 936 (citing Smith v. Our Lady of the Lake Hosp., Inc., 93-2512 (La.7/5/94), 639 So.2d 730, 751). Furthermore, La. C.C.P. art. 967(B) also states in pertinent part:

When a motion for summary judgment is made and supported as provided above, an adverse party may not rest on the mere allegations or denials of his pleading, .but his response, by affidavits or as otherwise provided above, must set forth specific facts showing that there is a genuine issue for trial. If he does not respond, summary judgment, if appropriate shall be rendered against him.

While the Appellants raise three (3) assignments of error on appeal, we find that the first two (2) assignments of error are in common, and will address them jointly. The Appellants argue that, in the matter sub judice, the district court erred in granting the Appellee’s motion for summary judgment. Finding support for this argument, and in light of the applicable statutes and case law, it appears that the motion for summary judgment granted by the district court should be reversed. The basis for the motion for summary judgment filed by the Appellee was that the Appellants failed to appear on the aforementioned scheduled date for the sale of the property; thus, they had defaulted on the terms of the compromise agreement. The Appellee presented to the court a memo and affidavits supporting its motion. In these supporting documents was the affidavit of Mr. Christopher Marino, stating the facts from the parties encounter on the morning of January 31, 2011, pertaining to the contract agreement. Mr. Mari-no is a representative of Marino Investments |7and a member manager of the company. The affidavit of Mr. Marino contained the Appellee’s requests and allegations which were made against the Appellants.

Upon the Appellee’s filing of the necessary documents to support their motion for summary judgment, the Appellants filed their answer and affidavits providing the district court with facts which were contrary to the Appellee’s affidavits provided. The Appellee sought to have the contract between the parties deemed null and void. Appellants argue that all the facts of record supported that the Appellants had complied with the contract terms since the decision to sell in 2005, and the compromise agreement in 2007.

A summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact, and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B). Simply put, in order for a motion for summary judgment to be granted, there must be no genuine issues of material facts. Id. Here, the parties presented competing affidavits, which acknowledged that on the morning of January 31, 2011, prior to the agreed upon time to meet and sign the contract at 1:30 p.m., the Appellee requested, and was granted another inspection of the Property by the Appellants. After the inspection, Mr. Marino made new allegations that “new environmental contamination” had been found, which was not previously present. The Appel-lee requested for the Appellants to either pay for the cleanup of this contamination or reduce the sale price of the Property. Upon receiving this information, the Appellants informed the Appellee of their intent to reject the requests by the Ap-pellee as the allegations were untrue and frivolous. The Appellants informed the Appellee of their decision to not complete the sale of the Property later that day lsuntil the Appellee’s allegations had been cured. Therefore, a material issue of fact precluding the granting of summary judgment was presented to the district court as to whether there was an agreement to execute a sale at 1:30 p.m. on January 31, 2011.

As previously reasoned by the district court in its judgment granting the Motion to Enforce Settlement Agreement filed by the Appellants, the purchase agreement provided for the Appellee to inspect and test the property for contaminants and defects within ninety (90) days of the agreement. Further in 2007, the oral compromise agreement provided for the Ap-pellee to conduct all inspections and the like of the Property within five (5) business days from December 28, 2007. However, the Appellee’s new allegations on January 31, 2011, concerning the faulty wiring and new found contaminations came long after the allotted time for inspections. The Ap-pellee sought numerous inspections, one as late as January 11, 2011, to which the Appellants complied with and cleaned up the Property as requested. One could reasonably conclude that the Appellee was making allegations to prevent the closure of the sale of the Property.

The Appellants failed to sign the contract since the Appellee sought to create a cost for the Appellants. The parties provided the court with affidavits which required the court to inquire as to whether the Appellants were justified in their failure to appear for the signing of the contract; and whether their failure was based on their assumption that, contingent upon the conversation with the Appellee, the Appellee was presenting them with a counter offer and new contract terms, which were not previously discussed and agreed upon. Here, the court granted a summary judgment based solely on contradicting affidavits. The statements contained in the 19affidavits provided genuine issues of material fact upon which reasonable persons could disagree.

The Appellants persuasively argue that the affidavits submitted to the district court contained information and issues of subjective facts of intent, knowledge, motive, and good faith, which needed to be resolved by the district court. Thus, as we opined in Coto v. J. Ray McDermott, 1999-1866 (La.App. 4 Cir. 10/25/00), 772 So.2d 828; Berger v. Fireman’s Fund Ins. Co., 305 So.2d 724, (La.App. 4 Cir.1974), summary judgment is rarely an appropriate determination based upon subjective facts such as intent, motive, malice, knowledge or good faith; therefore, summary judgment was not appropriate in this matter.

Here, the Appellee formed a new company and transferred all rights owned in the Property to this company, though both companies were owned and operated by the same individual and entity, Mr. Mari-no. The Appellee failed to obtain the consent of the Appellants in transferring the interest owned in the Property to the newly formed company. Further, the Appel-lee filed suit seeking a contract, which the Appellants had complied with for four (4) years, to be deemed null and void without justifiable reasons. Knowledge of the facts proves that the Appellants had complied with the terms of the compromise agreement since its inception. It is, in fact, the Appellee who has sought on numerous occasions to have the sale of the Property abandoned.

The Appellee claims that it was ready to proceed with the sale by previously transferring a portion of the sale amount to the bank account of the Appellants. However, this argument is flawed. The Appellee sought to cause the Appellants to incur more costs. The Appellee had, for four (4) years, failed to finalize the sale of the Property, and once again, was trying to sabotage the sale, which it succeeded in | mdoing. It is contradictory to find that the Appellants would not appear at the final signing of the sale agreement which they had sought to have enforced for over four (4) years. These assignments of error have merit.

In the third assignment of error raised by the Appellants, they argue that the district court erred in not disposing of their exceptions prior to moving forward with the motion for summary judgment. The Appellee waited until the morning of the signing of the final sale of the Property to request another inspection of the Property; though the Appellee had two (2) weeks prior to, requested a cleanup of the Property to which the Appellants complied with immediately. Upon their inspection, the Appellee made allegations, which the Appellants failed to accept. Shortly thereafter, rather than filing suit to seek a declaratory judgment, the Appellee formed a new company and transferred all their property rights to the new company, though both companies were owned and operated by the same individual, Mr. Mari-no. Thereafter, they filed suit seeking the nullity of the agreement between the parties which was allotted to Division “G” of the district court in case # 2011-2068, though there is a pending case pertaining to this matter in Division “C” in case # 2005-8989, of the same court.

The district court erred by not disposing of the pending exceptions of Lis Pendens and Res Judicata prior to granting the motion for summary judgment. The Appellants argue that in addition to filing an answer to the motion for summary judgment filed by the Appellee, they filed numerous exceptions, to which the hearing date was scheduled for June 3, 2011. The district court also had the hearing for the motion for summary judgment scheduled for May 20, 2011. The Appellants’ exception of Lis Pendens and Res Judicata asserted that there are two (2) suits pending in the district court pertaining to the same matter and amongst the |nsame parties. The exceptions stated that two (2) lawsuits were pending in the district court arising out of the same occurrence: 1) Marino Investments, LLC v. Jennie Lee Higginbotham wife of/and Wilson Johnson, bearing docket number 2005-8989, and 2) 8701 Oak Street, LLC, v. Jennie Lee Higginbotham wife of/and Wilson Johnson, bearing docket number 2011-2068. Both lawsuits arise out of the same transaction and occurrence-that being the purchase of 8701 Oak Street. The parties in both proceedings and the obligations involved are exactly the same. The act of the Appellee changing its name from Mari-no Investments, LLC to 8701 Oak Street, LLC, does not in any way change the identity of the parties or alleviate the obligations and responsibilities of all the parties involved.

La. C.C.P. art. 531, entitled Suits pending in Louisiana court or courts, provides in pertinent part, “[w]hen two or more suits are pending in a Louisiana court or courts on the same transaction or occurrence, between the same parties in the same capacities, the defendant may have all but the first suit dismissed by excepting thereto as provided in Article 925.” Additionally, we have opined that:

[t]he test for deciding whether an Exception of Lis Pendens should be granted is to inquire whether a final judgment in the first suit would be res judicata in the subsequently filed suit. The Exception of Lis Pendens has the same requirements as the Exception of Res Ju-dicata, and is properly granted when the suits involve the same transaction or occurrence between the same parties in the same capacities.
The first requirement for granting an Exception of Lis Pendens is that there are two or more suits pending. (Citations omitted).

Glass v. Alton Ochsner Med. Found., 2002-0412, p. 4 (La.App. 4 Cir. 11/6/02), 832 So.2d 403, 406-07, writ denied sub nom., Glass v. Alton Ochsner Med. Found. (Ochsner Found. Hosp.), 2002-2977 (La.3/14/03), 839 So.2d 36 and writ denied 112sub nom., Glass v. Alton Ochsner Med. Found. (Ochsner Found. Hosp.), 2002-3018 (La.3/14/03), 839 So.2d 37.

The record indicates that the issues regarding the sale of the Property, including the purchase agreement, and both Motions to Enforce Settlement, have been litigated in Division “C”. Thus, Division “C” of the district court has all the working knowledge surrounding this instant matter, and therefore, case # 2011-2068 should have been consolidated with case # 2005-8989 in Division “C” of the district court.

Here, though the exceptions filed by the Appellants asserted that all of the previous litigation and pending litigation pertaining to the sale of the Property are in Division C of the district court, the district court without hearing the exceptions, ruled on the Appellee’s motion for summary judgment.

However, all the litigation relating to the sale of the Property occurred in Division “C”. There are numerous motions which were granted in the previous litigation (which the parties have yet to comply with). Further, though the Appellee, formerly known as Marino Investments, LLC, formed a new company, 8701 Oak Street, LLC, and transferred all property rights owned under Marino Investments to 8701 Oak Street, both companies are owned and operated by Mr. Marino. Also, the suit is against the Appellants, who are the same named defendants in the previous and pending litigation in Division “C” against the Appellee. Finally, the motion for summary judgment granted in the present matter would be res judicata in the subsequently filed suit in Division “C” of the district court.

La. R.S. 13:4281, entitled Res Judicata, provides in pertinent part:

| lsExcept as otherwise provided by law, a valid and final judgment is conclusive between the same parties, except on appeal or other direct review, to the following extent:
(2) If the judgment is in favor of the defendant, all causes of action existing at the time of final judgment arising out of the transaction or occurrence that is the subject matter of the litigation are extinguished and the judgment bars a subsequent action on those causes of action.
(3) A judgment in favor of either the plaintiff or the defendant is conclusive, in any subsequent action between them, with respect to any issue actually litigated and determined if its determination was essential to that judgment.

As previously mentioned, a lawsuit was filed between the same parties in Division “C”. The initial lawsuit pertained to the Appellee seeking specific performance under the terms of the compromise agreement signed by the parties in 2005. Additionally, the district court granted a Motion to Enforce Settlement Agreement dated October 8, 2010, which became a final judgment when the Appellee failed to seek an appeal in this Court on the judgment. Thus, the Appellee’s present suit in Division “G”, which seeks to nullify the same purchase agreement and compromise agreement as litigated and ruled on in the judgment dated October 8, 2010, may be barred under res judica-ta.

Thus, considering the record in this Court and the Appellants’ opposition to the motion for summary judgment and exceptions filed, we conclude that genuine issues of material facts exist. Furthermore, the district court erred in not hearing the Exceptions of Lis Pendens and Res Judicata prior to conducting a hearing on the Ap-pellee’s motion for summary judgment. At best, the instant matter should have been transferred to Division “C” of the Civil District Court of Orleans Parish. The failure of the district court to do so amounted to an error in law. Therefore, the | ^judgment of the district court is reversed and this matter is remanded for further proceedings consistent with our opinion herein.

DECREE

For the foregoing reasons, the granting of the motion for summary judgment by the district court is reversed.

REVERSED

      . This appeal involves only one Appellee, 8701 Oak Street LLC. The owners of Marino Investments, LLC transferred all the property rights which were owned in this LLC to 8701 Oak Street, LLC. Thus, this appeal involves one Appellee with different business names.