Brouillette v. Ducote

674 So. 2d 310, 95 La.App. 3 Cir. 1000, 1996 La. App. LEXIS 894, 1996 WL 195470
CourtLouisiana Court of Appeal
DecidedApril 24, 1996
DocketNo. 95-1000
StatusPublished
Cited by1 cases

This text of 674 So. 2d 310 (Brouillette v. Ducote) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Brouillette v. Ducote, 674 So. 2d 310, 95 La.App. 3 Cir. 1000, 1996 La. App. LEXIS 894, 1996 WL 195470 (La. Ct. App. 1996).

Opinions

JjYELVERTON, Judge.

This appeal arises out of a suit by Stacey and Scott Brouillette for an action in redhibition or in the alternative a reduction in the purchase price of their home due to termite infestation and damage. These parties were before us in 1994. Brouillette v. Ducote, 93-990 (La.App. 3 Cir. 3/2/94), 634 So.2d 1243. The Brouillettes had sued Mrs. Bernice Du-cote and her three major daughters alleging that the home they purchased on December 1, 1991, had extensive, hidden termite damage. The Ducotes filed a third-party claim against Emanuel Morris, the pest |2control operator who treated the home and issued two termite inspection certificates prior to the sale. The Brouillettes also added a claim against Morris. Mrs. Ducote died before the case went to trial, and her succession administrator was named as a defendant.

At the close of the plaintiffs’ case, the trial court granted the defendants’ motion for involuntary dismissal, but awarded the Brouil-lettes $1,000 that had been placed in escrow at the time of the sale. On the first appeal this court affirmed the judgment of the trial court which dismissed the Brouillettes’ claim in redhibition against the vendors and the claim in contract against Morris. This court reversed the judgment insofar as it dismissed the Brouillettes’ claim in tort against Morris and in quanti minoris against the vendors. The case was then remanded.

On remand no further evidence was introduced. The trial court awarded a reduction in the purchase price of the house against Mrs. Ducote’s estate in the amount of $3,656. The trial court found that only Mrs. Ducote was in bad faith and awarded the Brouillettes $500 as attorney’s fees against her estate. The estate of Mrs. Ducote was given a credit in the amount of $1,000 for the amount held in escrow. All other claims of the Brouil-lettes were rejected.

The Brouillettes appeal the judgment raising several issues. They claim that the trial court should have found Morris negligent. They claim the trial court also erred in finding only Mrs. Ducote’s estate liable on the quanti minoris claim, urging that the court should have found her three daughters, who were co-owners with their mother, also liable for damages and attorney’s fees. They contend that the award for attorney’s fees was too low. Finally, the Brouillettes argue that they are entitled to an award of general damages.

_JjThe Ducotes answered the appeal alleging that the trial court erred in finding Mrs. Ducote’s estate liable and in not finding Morris negligent. The Ducotes allege that the trial court erred additionally in finding Mrs. Ducote was in bad faith. Finally, they claim that they are entitled to credit for interest on the $1,000 the Brouillettes received at the time of the sale.

FACTS

The facts as narrated by another panel of this court in the first appeal have not changed. On remand the record was untouched. We will simply quote the facts as [313]*313pronounced in Brouillette, 634 So.2d at 1245-1246, for the convenience of the reader.

In August of 1991, Mrs. Bernice Dueote asked Emanuel Morris to inspect the home in question for possible termite infestation and damage. Morris found evidence of active termite infestation with damage to ceiling tiles, molding and paneling in the bathroom and near the fireplace. He treated the infestation problem and put the home under a standard pest control contract, guaranteeing his treatment for one year. He also presented Mrs. Dueote with a hand-drawn diagram of the house, marking the areas where he found active infestation and damage. This diagram or ‘graph’ was signed by Mrs. Dueote and was attached to the standard contract form. However, the ‘graph’ was not given to the Brouillettes or to their closing attorney at the time of the sale, although the contract form was. After Mrs. Ducote’s death, the original graph drawn by Morris was found among her effects.
Mrs. Dueote contacted Morris again in October of 1991, asking him to issue a ‘wood destroying insect report’ that was required for the sale of the house. Morris eventually prepared two such reports, one with an inspection date of October 9, 1991, the other with an inspection date of November 25, 1991. It is undisputed that Morris did not actually inspect the Dueote home on either of those two dates. On the inspection form, which is supplied by the State of Louisiana, Morris checked off block 9C with the | potation, ‘Visible evidence of subterranean termites was found. Proper control measures were performed.’ However, Morris did not fill in block 9E which required a listing of areas where visible damage had been found.
The Brouillettes began living in the home in September of 1991, but the act of sale was not passed until December 1, 1991. They testified that the only damage they observed in the home before the sale were discolored ceiling tiles and a leak in the toilet. They testified that at the closing, they saw the words ‘subterranean termites’ on the inspection certificate prepared by Morris, but they were assured by Mrs. Dueote that the problem had been remedied by treatment.
Stacey Brouillette testified that she first became aware of a termite problem approximately four months after the sale, in ' March or April of 1992, when she came home one day and found termites in every room of the house. Since then, the house has been continuously infested with termites.
When the Brouillettes first saw the termites in their home, they immediately contacted Morris who showed them the ‘graph’ that he had prepared for Mrs. Du-cote. This was the first time that the Brouillettes had seen that document. According to Scott, the termites appeared to be coming from the same wall where Morris had indicated active infestation on the graph. After having Morris retreat the home, the Brouillettes contacted Brent Scallan, a building contractor, to determine the full extent of the termite damage, if any. Scallan removed ceiling tiles, paneling and insulation throughout the house and observed several hidden points of entry for the termites, particularly in the bathroom area. He found moisture damage, as well as termite damage in the joists, ceiling, moldings and rafters. He estimated that repair of the damaged areas would cost approximately $3,646.
James Arceneaux, who served as the director of the Structural Pest Control Commission of Louisiana for 10 years, testified as an expert on behalf of the plaintiffs. Arceneaux inspected the Brouillette home on February 23, 1993, after Scallan had removed the paneling and fascia boards. Arceneaux found active infestation, as well as extensive damage throughout the house, including wooden studs and rafters near the fireplace, and the dining area, the attic and bathroom. In his opinion, the extensive damage |5found indicated that, more probably than not, the termites were in the house in December of 1991.
Arceneaux also expressed his opinion on the standard of care owed by a pest control operator in preparing a wood destroying insect report. Arceneaux served on the committee that drafted the state ter[314]*314mite inspection reports. He testified that Morris fell below the standard of care when he failed to fill in section 9E of the report dealing with visible evidence of termite damage.

LIABILITY

The issue of liability with regard to all parties to this action has been raised on appeal.

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Bluebook (online)
674 So. 2d 310, 95 La.App. 3 Cir. 1000, 1996 La. App. LEXIS 894, 1996 WL 195470, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brouillette-v-ducote-lactapp-1996.