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Abshire v. Belmont Homes3/2/2005
AFFIRMED.
This appeal arises from a suit in redhibition and for property and personal injury damages in which the plaintiffs named Belmont Homes, Inc. as one of a number of defendants. Belmont Homes, Inc. appeals the trial court's denial of its dilatory exception of prematurity. For the following reasons, we affirm the trial court's judgment, although on different grounds.
DISCUSSION OF THE RECORD
Procedural History
This litigation involves a manufactured home constructed by Belmont Homes, Inc. (Belmont Homes) and sold by United Homes, Inc. (United Homes) to Ronald J. Abshire and his mother-in-law, Shirley May Simmons (who apparently appeared primarily as a cosigner). On August 14, 2003, Mr. Abshire and his wife, Kari, individually and on behalf of their minor child, Khristen, and Ms. Simmons filed this suit against Belmont Homes and United Homes as well as the Abshire's homeowner's insurer, National Security Fire & Casualty (NSFC). In their petition, the plaintiffs asserted that United Homes and Belmont Homes were liable to them for negligent installation, negligent construction, breach of contract, failure to warn them of certain conditions, and violations of various state and federal laws and manufacturing safety standards. They asserted that for these reasons, and because the manufactured home contained various latent defects, they were entitled to recision of the sale with the return of the purchase price, attorney fees, and property and personal injury damages.
United Homes answered the petition and filed a cross-claim against Belmont Homes, seeking indemnity from Belmont Homes for any amounts for which it might be cast in judgment. NSFC answered the plaintiffs' petition and asserted a cross-claim against both Belmont Homes and United Homes, also seeking indemnity for any amounts for which it might be cast in judgment. Belmont Homes responded to the plaintiffs' petition with an exception of prematurity in which it asserted that any claims against it by the plaintiffs were required to first be submitted to arbitration. At a hearing held on May 5, 2004, the trial court denied the exception of prematurity. Belmont Homes timely perfected this appeal, asserting in its sole assignment of error that the trial court erred in not requiring arbitration of all the claims asserted against it by the plaintiffs.
Factual History
Most of the facts concerning the transaction at issue are not in dispute. United Homes is in the business of selling manufactured homes to the public, and Belmont Homes is in the business of building or constructing manufactured homes. Included within United Homes' inventory of manufactured homes are units built by Belmont Homes.
OnMarch 7, 2001, Mr. Abshire and Ms. Simmons appeared at United Homes' business location in Lake Charles, Louisiana, and purchased a manufactured home built by Belmont Homes. At the time they purchased the manufactured home, Mr. Abshire and Ms. Simmons signed three separate documents. These documents were not introduced into evidence at the hearing on the dilatory exception, but were attached to the pre-hearing memoranda filed by the litigants.
Appellate courts are courts of record and may not reviewevidence that is not in the appellate record or receive new evidence. La.Code Civ.P. art. 2164; Sutton's Steel & Supply, Inc. v. BellSouth Mobility, Inc., 00-0511, 00-0898 (La.App. 3 Cir. 12/13/00), 776 So.2d 589, writ denied, 01-0152 (La. 3/16/01), 787 So.2d 316. However, despite the fact that the litigants did not introduce these documents into evidence, they have treated the documents as if they were introduced; therefore, we will treat their ackn
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