Derivas v. Falbaum

2 So. 3d 1236, 2009 La. App. LEXIS 107, 2009 WL 188177
CourtLouisiana Court of Appeal
DecidedJanuary 28, 2009
Docket43,945-CA
StatusPublished
Cited by1 cases

This text of 2 So. 3d 1236 (Derivas v. Falbaum) 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
Derivas v. Falbaum, 2 So. 3d 1236, 2009 La. App. LEXIS 107, 2009 WL 188177 (La. Ct. App. 2009).

Opinion

GASKINS, J.

hln this redhibition suit arising from the sale of a house, the plaintiff appeals from a trial court judgment granting the defendants’ exception of prescription. We affirm.

FACTS

The defendants, William and Gwendolyn Falbaum, owned a house located on Pierre-mont Road in Shreveport, Louisiana. They bought the house from Edna Kaye Maples in June 1999. During Ms. Maples’ ownership of the house, she experienced some water and drainage issues. As a result, in 1993, she consulted Dirk Hyde of Hyde Engineering, Inc. In a letter dated July 15, 1993, Mr. Hyde suggested a two-phase solution to remedy the problems. Ms. Maples undertook the first phase. After they purchased the house, the defendants completed the second phase, as well as a subsequently recommended third phase.

The defendants sold the house to the plaintiff, Susan Marie Derivas, for $236,600 on December 23, 2004. In the property disclosure form, the defendants revealed that the lower level had “taken water by flooding.” 1 Prior to the sale, the plaintiff received a positive home inspection report by American Dream Home Inspection Service.

On February 21, 2007, the plaintiff filed suit against the defendants. She asserted that from September to October 2005, she began to notice gaps in the fireplace mantle in the living room, difficulties closing the back door, | ?and gaps in the sheetrock seaming in the entry way. On February 22, 2006, Mike Denton of Power Lift Foundation Repair-Residential, LLC, inspected the residence and found evidence of water seepage and patching in the side walls of the basement. According to the petition, the plaintiff learned from Mr. Hyde that he had previously consulted with the defendants and Ms. Maples. The plaintiff further asserted that she then hired Durr Engineering to inspect the property and that Don A. Durr, Jr., made several suggestions as to how to improve the drainage and correct the foundation problems. She alleged that Mr. Durr learned that Hyde Engineering made several suggestions for repairs and that at least one of the drainage improvements was not allowed by the homeowner’s association. Power Lift made the foundation repairs for $7,800, but other cosmetic repairs needed to be made. *1238 Also, the estímate for correcting the drainage problem was between $15,000 and $18,000, plus costs of cosmetic repairs.

The plaintiff alleged that while the defendants disclosed the installation of three French drains in 1999 to remedy drainage problems, they failed to disclose problems with water seepage into the residence or with the foundation even though they had knowledge of these issues. Furthermore, she contended that the defects were not apparent and that she did not become aware of them until after February 22, 2006. The plaintiff requested return of the purchase price with interest or alternatively a reduction in the purchase price, as well as damages and attorney fees.

On September 28, 2007, the defendants filed an answer and an exception of prescription in which they asserted the one-year prescriptive Uperiod of La. C.C. art. 2534. The defendants argued that they made the necessary repairs to the drainage while they owned the house and that the foundation was in good condition at the time of the sale. In support of their exception, the defendants submitted the depositions of Mr. Falbaum and Mr. Hyde, as well as a copy of the cash deed to the plaintiff.

The exception was argued and submitted on November 5, 2007. The trial court found that the sellers knew or should have known of problems; thus, the one-year good faith prescriptive period was not applicable. However, it sustained the exception based upon the suit not being filed within one year of circumstances that should have prompted an investigation, i.e., the problems with the fireplace mantle, the back door, and the sheetrock. Judgment granting the exception and dismissing the plaintiffs suit was signed on November 5, 2007.

On November 18, 2007, the plaintiff filed a motion for a new hearing on the exception. She argued that she did not learn that the problems she discovered in September or October 2005 might be related to redhibitory defects existing at the time of the sale until on and after February 22, 2006. A hearing was held on March 31, 2008; the trial court denied the plaintiffs motion. Judgment in conformity with this ruling was signed on April 4, 2008.

The plaintiff appeals.

LAW

A redhibitory action involving the sale of residential immovable property prescribes one year from the day delivery of the property was made |4to the buyer when the seller did not know of the existence of the defect, or one year from the day the defect was discovered by the buyer when the seller either knew or is presumed to have known of the defect. La. C.C. art. 2534. 2 The exceptor/seller bears the burden of showing the redhibitory action is barred by prescription. However, where the petition shows that the claim has prescribed, the buyer must prove otherwise. Also, once the exceptor/seller proves the lapse of one year either from the date of delivery or the date of discovery of the defect, whichever applies, the burden shifts to the buyer to show an interruption or suspension of prescription. *1239 Stichberry v. Nolan, 33,803 (La.App.2d Cir.8/23/00), 765 So.2d 1201.

Prescription does not begin to run at the earliest possible indication that a plaintiff may have suffered some wrong; it begins when the plaintiff has a reasonable basis to pursue a claim. Gadpaille v. Thomas, 43,412 (La.App.2d Cir.8/13/08), 990 So.2d 126. Normally, a crack or separation in a wall is deemed apparent evidence of a defect. When the buyer discovers such a crack, the one-year prescriptive period begins to run. Gadpaille v. Thomas, supra.

When prescription is raised by peremptory exception, with evidence being introduced at the hearing on the exception, the trial court’s findings of fact on the issue of prescription are subject to the manifest error-clearly | ¿wrong standard of review. London Towne Condominium Homeowner’s Association v. London Towne Company, 2006-401 (La.10/17/06), 939 So.2d 1227. Under the manifest error standard of review, a factual finding cannot be set aside unless the appellate courts finds that it is manifestly erroneous or clearly wrong. London Towne Condominium Homeowner’s Association v. London Towne Company, supra. In order to reverse a fact finder’s determination of fact, an appellate court must review the record in its entirety and (1) find that a reasonable factual basis does not exist for the finding, and (2) further determine that the record establishes that the fact finder is clearly wrong or manifestly erroneous. Stobart v. State through Department of Transportation and Development, 617 So.2d 880 (La.1993). Where there are two permissible views of the evidence, the fact finder’s choice between them cannot be manifestly erroneous or clearly wrong. Stobart, supra.

To determine whether a defect is apparent, courts consider whether a reasonably prudent buyer, acting under similar circumstances, would discover it through a simple inspection of the thing sold.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Leija v. Ford Motor Co.
161 So. 3d 1020 (Louisiana Court of Appeal, 2015)

Cite This Page — Counsel Stack

Bluebook (online)
2 So. 3d 1236, 2009 La. App. LEXIS 107, 2009 WL 188177, Counsel Stack Legal Research, https://law.counselstack.com/opinion/derivas-v-falbaum-lactapp-2009.