Fortmayer v. Schulingkamp

405 So. 2d 671, 1981 La. App. LEXIS 5358
CourtLouisiana Court of Appeal
DecidedOctober 13, 1981
DocketNo. 12109
StatusPublished
Cited by1 cases

This text of 405 So. 2d 671 (Fortmayer v. Schulingkamp) 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
Fortmayer v. Schulingkamp, 405 So. 2d 671, 1981 La. App. LEXIS 5358 (La. Ct. App. 1981).

Opinion

CHEHARDY, Judge.

Plaintiff, Lloyd D. Fortmayer, appeals a district court decision in favor of defendant, Donald Schulingkamp, maintaining the defendant’s exception of prescription and dismissing the plaintiff’s suit at his costs. In his judgment on this action for reduction in purchase price of a residence, the trial court judge noted that the exception of prescription was well-founded inasmuch as the house was purchased on June 14, 1976 and this petition was not filed until July 28, 1977.

Although the exception of prescription was timely filed by the defendant, the district court referred it to the merits of the case. At a trial on the merits the plaintiff testified that he purchased the residence which is the subject of this case from the defendant on June 14, 1976 for the sum of approximately $44,500 and that he had inspected the residence prior to the sale. He said that at that time he did not notice any cracks around the windows, doors or in the brick walls surrounding the house. He testified further that on the night of September 1, 1976, while he was in bed in the master bedroom of the house, he heard a loud noise like an explosion, crash or thunder. He stated upon inspection the next morning he found cracks by the window on the north side and also some on the left side of the house. Photographs of these cracks are part of the record before this court.

The defendant testified he acquired the property in question sometime during the 1950s and that in 1970 he added on “the back, the den and that little bedroom back there.” He also stated that when the property was sold to the plaintiff in 1976 its condition was good and there were no cracks or other settlement of the property. He stated the slab of the addition was laid approximately an inch or an inch and a half lower than the rest of the house to allow room for shag carpeting; but he said the floor was level although there were no pilings under the addition. The defendant also said he had obtained a building permit from the City of Gretna at the time he constructed the addition.

Walter Bonie, accepted by the court as an expert in the field of architecture and engineering, testified he examined the house and structure in question and took differential levels which were introduced as part of an exhibit in the case. His finding was that there was approximately a one- and one-half-inch differential in elevation from the rear of the addition to the portion of the addition which is attached to the home. He also concluded this differential was not intentional but the result of the foundation settling after construction was completed. He added that proper installation of pilings, a proper slab and proper gradings would have prevented the droppage. He said he had also examined the grade beam beneath the foundation of the addition and found the depth of the grade beam on the original building to be 20 inches, whereas the depth of the grade beam on the addition was only 10 inches. He said in his opinion the depths of the two grade beams should have been the same.

[673]*673Eld Wetzel, accepted as an expert in the field of general construction and contracting, said the Veterans Administration requirement for residential construction of a brick veneer type, where piling is not required, is that the grade beam should be 24 inches deep, 16 inches wide, with steel rods reinforcing. He also said the damage done to the structure could not be repaired but he would have to replace the whole structure at an estimated cost of $21,600 plus a 15-percent increase from the date of the estimate to the trial date.

Berkley Traughber, accepted by the court as an expert in structural, geotechnical and civil engineering, stated that, upon inspection of the structure, he found a difference in settlement of one and one-half inches between the northeast and northwest corners. He also said he found two Vs-inch crack openings in the masonry where the mortar joints were separated.

Traughber said he did not consider his finding to be major damage and he would only repair by insertion of mortar to the joints. He stated he believed the settlement was at a standstill, but admitted he would not advise construction of an addition on a house using only a 10-inch grade beam when there was a 20-inch grade beam under the main structure.

Plaintiff contends on appeal that the district court judge was in error in dismissing his case on the ground that it had prescribed. He argues his suit was filed within one year of the discovery of the hidden defect in the addition and, therefore, was within the limitations of LSA-C.C. art. 2534. He further argues that because the defendant owned the house at the time the addition was added and admitted he knew there were no pilings under it, he is presumed to have knowledge of any defects in the structure.

We cannot agree, and we affirm the district court decision.

LSA-C.C. art. 2534 states a redhibitory action must be instituted within a year at the farthest, commencing from the date of the sale. The article adds that this limitation does not apply where the seller had knowledge of the vice and neglected to declare it to the purchaser.

LSA-C.C. art. 2541 provides that whether the defect in the thing sold be such as to render it useless or altogether unsuited to its purpose or whether the defect in the thing sold be such as to merely diminish the value, the buyer may limit his demand to a reduction of price. However, LSA-C.C. art. 2544 establishes that an action for reduction of price is subject to the same rules and the same limitations as the redhibitory action.

Apparently the district court judge determined, as does this court, that the “defect” shown by the testimony was the insufficiency of the grade beam used in the addition. All experts agreed, in fact, that a beam comparable to that used in the main structure should have been employed. From the testimony of the experts, however, we cannot conclude that the failure to employ pilings as support for the addition was necessarily a defect in the construction. It was not shown by any of the testimony, however, that the defendant was actually aware of any such defect as the difference in beam sizes under the main part of the house and the addition.

Although the plaintiff cites Aucoin v. Fontenot, 334 So.2d 773 (La.App. 3d Cir. 1976), in support of his request for reduction of price, we find this case to be distinguishable on its facts from the present one. In Aucoin, supra, the plaintiff sued for diminution after the slab piping in the building sold to him developed massive leaks to the end that all slab piping had to be abandoned. Testimony adduced at the trial on the merits indicated the defendant was aware that galvanized iron water pipes were located beneath the floor of the building and that they were not replaced when he remodeled it. The plaintiff, moreover, testified the defendant had assured him that all of the water piping was copper; the plaintiff’s statements in this regard were confirmed by his contractor, who said he had instructed the plaintiff to obtain this information from the defendant. Consequently, the district court judge rejected [674]*674the defendant’s claim that he was not aware of any defect in the building, and the appellate court did not hold the trial court was in manifest error in reaching its factual conclusions. In the present case, however, as noted above, it was not established the defendant actually knew the beam used under the main house differed in size from that used in construction of the addition.

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Bluebook (online)
405 So. 2d 671, 1981 La. App. LEXIS 5358, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fortmayer-v-schulingkamp-lactapp-1981.