Cook v. DeSoto

552 So. 2d 69, 1989 La. App. LEXIS 2111, 1989 WL 135140
CourtLouisiana Court of Appeal
DecidedNovember 8, 1989
DocketNo. 88-730
StatusPublished
Cited by2 cases

This text of 552 So. 2d 69 (Cook v. DeSoto) 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
Cook v. DeSoto, 552 So. 2d 69, 1989 La. App. LEXIS 2111, 1989 WL 135140 (La. Ct. App. 1989).

Opinion

GUIDRY, Judge.

Dallas and Eula Beddingfield DeSoto, defendants in a redhibition suit brought by Brenda Cook for defects in her home, appeal that portion of the trial court’s judgment denying their third party demands filed against various parties. Third party defendant, Harmony Hills Development Company, Inc., appeals that portion of the trial court judgment denying its third party demand against Meyer, Meyer, Hixson and LaCroix, Inc. (corporately and individually) in the event Harmony Hills is cast in judgment as a result of the DeSoto appeal.

FACTS

In 1979, defendants, Dallas and Eula De-Soto (hereafter DeSoto) purchased lot 60 of the Harmony Hills Subdivision. DeSoto, a contractor, built a “spec” house on this property which was ultimately sold, in the fall of 1980, to plaintiff, Brenda A. Cook. At the time of the sale, no defects in construction were apparent. In August or September of 1983, Mrs. Cook began experiencing structural problems: cracks in the slab, outside walk and sheetrock; sticking doors and windows; and, separation of window and door frames from the walls.

Amicable demand was made on DeSoto to remedy the defects. When DeSoto refused, this suit followed.

The learned trial judge, in his written reasons for judgment, set forth the procedural posture of this suit at time of trial.

“This suit was initiated by the plaintiff, Brenda A. Cook (Cook) in redhibition against Dallas & Eula DeSoto (DeSoto), as the builder, for defects in her home. She does not seek recision of the sale, but rather, reduction of the purchase price and damages. DeSoto in turn, filed third party demands against Harmony Hills Development Co., Inc., (Harmony [71]*71Hills), as the developer of the subdivision and as his vendor of the lot on which he built the home; against T.J. Spier and Albert R. Waites as sole stockholders of Harmony Hills; against Meyer, Meyer, Hixson & LaCroix, Inc. (Meyer, Inc.), the engineering firm used by the developer; against Meyer, Meyer, LaCroix & Hix-son, (Meyer Group), a commercial partnership and its individual partners, as sellers of the property to the developer; against the Rapides Parish Police Jury (Police Jury) and the Rapides Area Planning Commission (RAPC) as political bodies responsible for approval of the subdivision in which the home is located.
Third party defendant, Harmony Hills, filed third party demands against Meyer, Inc., as engineers of the subdivision; against the partnership and individual partners in Meyer Group, as its vendor of the property; and against the Police Jury and the RAPC, as political bodies responsible for approval of the subdivision. The last action ..., a third party demand by the Meyer Group against T.J. Spier as seller of the property to the Meyer Group [was severed from the suit, pending the outcome of the main demand].”

Following trial, the case was taken under advisement. Written reasons for judgment were handed down on February 5, 1988, and judgment in favor of Brenda Cook and against DeSoto awarded plaintiff $10,-450.00 for underpinning, $3,277.00 for additional repairs, $389.08 for landscaping, $1,000.00 for inconvenience and mental anguish, and $7,500.00 for attorney’s fees. The trial court also rendered judgment in favor of all third party defendants and against all third party plaintiffs dismissing the latters’ demands.

On appeal DeSoto argues that one or more of the named third party defendants breached a duty to warn of the unsuitable soil conditions and/or is liable under the theory of breach of warranty since lot 60 was not suitable for the purpose for which it was purchased, i.e., the building of a single family dwelling. Additionally, appellants argue that Harmony Hills should be liable as manufacturers of the subdivision lots.

Appellants’ breach of duty and warranty arguments hinge on the nature of the soil in the Harmony Hills subdivision, i.e., is the soil in the 40 acre tract comprising Harmony Hills so uncharacteristic of other soils in the area so as to impose a duty to warn a purchaser of its unstable nature and/or is the soil so unfit for residential construction that its very sale breaches the implied warranty of fitness for its intended use.

The trial judge rejected DeSoto’s arguments giving a detailed explanation for his rejection in his reasons for judgment. We agree with the trial judge and quote approvingly from his reasons:

“The general soil types and the properties of the soils found in Harmony Hills Subdivision are set forth in two exhibits. Exhibit Waites # 1 is an “Inventory and Evaluation for Harmony Hills”. Mr. Max Johnson, a 32 year employee of the Soil Conservation Service of the U.S. Department of Agriculture, served as a member of the STAR Committee, (which is a preliminary review committee for RAPC), when the application for Harmony Hills Subdivision was presented to that committee. It was Mr. Johnson’s policy to gratuitously prepare a soil inventory for every proposed subdivision in the parish. These inventories were prepared from information available in Mr. Johnson’s office. It was sent to each member of the STAR Committee and to the developer. The report was not based on any actual testing or observations made on the site of the proposed development, but rather was prepared from materials and information on hand in the SCS office....
Exhibit DeSoto # 17 is the second exhibit showing general soil properties in the area. It covers all of Rapides parish and is entitled “Soil Survey of Rapides parish, Louisiana”. Although it was not published and available to the public until 1980, it is a compilation of information available in the SCS office during the 1970’s....
[72]*72A further review of the information contained in the soil survey of Rapides parish, Louisiana shows that except for the rich alluvial lands bordering the Red River and the major bayous in Rapides Parish, just about any 40 acre tract will include soils described as having severe limitations for dwellings. Even in the river and bayou alluvia lands there is an abundance of Moreland and Latania soils which are described as possessing severe limitations for dwellings. Furthermore, all of the engineers, geophysicists, soil scientists, etc. agreed that the properties of the soil were not apparent. They could only be discovered by testing and through the interpretation of those tests by a soil expert. Such interpretation was not within the expertise of a civil engineer unless further qualified by training and experience in soil analysis. They also agreed that the existence of a soil with building limitations in a development does not make the subdivision or the soil unsuitable for building purposes. A soil described as having ‘severe limitations’ in the SCS analysis could cause problems in one area where found, and not in others. Only a soil test at a specific site can reveal the properties of a given soil at that site. The obvious conclusion from all of the above is that the ‘inventory and evaluation’ of soil types for Harmony Hills Subdivision did not present anything unusual or out of the ordinary for a subdivision in Rapides Parish.
... [F]or the reasons noted herein-above, the court does not feel that the existence of Acadia Soil in the area raises any red flags or duties to warn of its existence. It is not unusual, but rather typical of the area.

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Related

Thomson v. Cobb
570 So. 2d 145 (Louisiana Court of Appeal, 1990)
Cook v. Desoto
556 So. 2d 1264 (Supreme Court of Louisiana, 1990)

Cite This Page — Counsel Stack

Bluebook (online)
552 So. 2d 69, 1989 La. App. LEXIS 2111, 1989 WL 135140, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cook-v-desoto-lactapp-1989.