Summary
The Louisiana Third Circuit Court of Appeal reversed a summary judgment dismissing Kathy Lorraine Hand's claims against White's Mobile Homes, Inc. Hand failed to provide pre-suit notice required by the New Manufactured and Modular Home Warranty Act, but White's raised the issue for the first time in a motion for summary judgment. The court held that lack of notice must be raised through a dilatory exception of prematurity and that White's waived the objection by failing to timely plead it.
Topics
Practice areas
Questions Presented
- Whether lack of notice under La. R.S. 51:912.5 must be raised through a dilatory exception of prematurity rather than a motion for summary judgment.
- Whether White's waived its notice objection by failing to plead an exception of prematurity before or in its answer.
- Whether the trial court erred in granting summary judgment based on Hand's failure to provide statutory notice.
Holdings
- The proper procedural vehicle for raising lack of notice under La. R.S. 51:912.5 is an exception of prematurity, not a motion for summary judgment.
- White's waived any objection based on Hand's failure to provide notice under La. R.S. 51:912.5 by failing to file an exception of prematurity.
- The trial court erred in granting summary judgment because White's motion was premised on a waived notice objection that was procedurally improper.
Key quotations
“Once waived, the prematurity argument could not be resurrected by camouflaging it as a substantive issue.” (6)
“Therefore, we hold that the proper procedural vehicle in which to raise lack of notice under La.R.S. 51:912.5 is through an exception of prematurity.” (6)
“Because White’s did not file an exception of prematurity, it waived any notice objections under La.R.S. 51:912.5.” (6)
Factual background
In 2020, Kathy Lorraine Hand purchased a mobile home from White's Mobile Homes, Inc. Soon afterward, she allegedly experienced leaking, lack of levelness, and plumbing problems. She sued White's, alleging hidden defects, improper installation, improper leveling, and failure to provide a warranty. Hand did not give the Louisiana Manufactured Housing Commission the statutory pre-suit notice before filing suit, and White's did not raise the lack of notice through an exception of prematurity before moving for summary judgment more than four years into the litigation.
Procedural history
Hand sued White's in the Seventh Judicial District Court for damages arising from alleged defects and installation problems with a mobile home purchased in 2020. White's answered but did not file a dilatory exception, including an exception of prematurity. After approximately four years of litigation, White's raised Hand's lack of statutory notice for the first time in a motion for summary judgment. The trial court granted summary judgment and dismissed all claims. The court of appeal reversed and remanded.
Remand instructions
The case is remanded to the trial court for further proceedings. The appellate court declined to reach the remaining assignments of error because they were moot.