Fraering v. State National Bank

542 So. 2d 820, 1989 La. App. LEXIS 737, 1989 WL 37026
CourtLouisiana Court of Appeal
DecidedApril 19, 1989
DocketNo. 88-64
StatusPublished
Cited by1 cases

This text of 542 So. 2d 820 (Fraering v. State National Bank) 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
Fraering v. State National Bank, 542 So. 2d 820, 1989 La. App. LEXIS 737, 1989 WL 37026 (La. Ct. App. 1989).

Opinion

KNOLL, Judge.

Martin Fraering and his wife, Melissa Mims Fraering, appeal the adequacy of a judgment of the trial court which awarded them a $3500 reduction in price for certain redhibitory defects which affected a brick home the Fraerings purchased from State National Bank (hereafter State National). The trial court ruled that although the Fraerings sought a rescission of the sale, a reduction in the price was appropriate since the evidence established only a partial failure of consideration. We amend to increase the judgment, finding the price reduction inadequate to compensate the Fraerings for the defects established.

[821]*821FACTS

The brick house which is the subject of this redhibitory action was constructed in a New Iberia subdivision in 1982 by Big D Developers, Incorporated. When Big D went into bankruptcy, State National repossessed the house and it remained in its possession until December 28, 1984, when the Fraerings purchased it from State National for $87,500. Within a year of their purchase, the Fraerings encountered water seepage into the house on six to ten occasions in the master bedroom, the kitchen, the dining area, the children’s bedroom, the utility room, and the front and rear entrances.

This suit against State National was filed within one year of the Fraerings’ purchase of their home, but at their direction State National was not served with a copy of the petition until October of 1986. In early 1987, State National sent out a housing contractor to determine the source of the Fraerings’ problem, and ultimately State National expended approximately $6,000 to remedy the water seepage problem. In spite of these remedial efforts, the Fraer-ings pressed their claim against State National, contending that the water seepage problem was not solved.

PRICE REDUCTION

The Fraerings contend that the trial court abused its discretion in awarding them only a $3500 reduction in the purchase price.

LSA-C.C. Art. 2543 provides that in a redhibitory action, the trial court may decree merely a reduction of the price. In a redhibitory action the plaintiff must prove the thing sold contained a hidden defect which was not apparent by ordinary inspection and which rendered the thing unfit for its intended use or so imperfect that the purchaser would not have bought it had he known of the defect. LSA-C.C. Art. 2520; Davis v. Davis 353 So.2d 1060 (La.App. 2nd Cir.1977), writ denied, 355 So.2d 549 (La.1978). Apparent defects, such as the buyer might have discovered by simple inspection, are not among the number of redhibitory vices. LSA-C.C. Art. 2521. The existence of a redhibitory defect is a question of fact which can not be disturbed unless the record as a whole establishes that the finding is clearly wrong. Fogal v. Boudreaux, 497 So.2d 366 (La.App. 3rd Cir.1986).

It is within the discretion of the trial court to award either a rescission of the sale or a reduction in the purchase price in redhibitory actions. Fogal, supra at 370. This is essentially a factual determination best made by the trial court. Ark-La-Tex Builders & Realty, Inc. v. Hoge, 344 So.2d 90 (La.App. 2nd Cir.1977).

In the case sub judice, the Fraerings established that the flooding in the house occurred when a steady rain was accompanied by moderate to high winds. When these weather conditions occurred, the carpet and flooring in the various parts of the house enumerated hereinabove would become water soaked. Photographs introduced into evidence graphically demonstrated the moisture and mildew under the carpeting, the rotting carpet strips along the perimeter of the master bedroom, as well as rotting parts of the wooden doors and door casings at the entrances.

John H. Sandifer, an expert accepted by the trial court in residential construction, testified on behalf of the Fraerings. Mr. Sandifer physically examined the Fraering residence and noted that he found an interi- or wall cracked on the front of the house, that the mortar used to bind the bricks was of inferior quality, that there was a tapering ⅛ inch crack in the cement floor in the living room beneath the carpeting, and that the brick ledge around the house was not as wide as it should have been. On this basis, Mr. Sandifer opined that water was seeping into the house through the foundation and brick work, and that the only way to correct the defects was to completely rebuild the house. Mr. Sandifer did not conduct any scientific testing of the mortar and did no soil compaction studies with regard to the slab cracking.

Alfred Joseph Theriot was qualified as an expert in the field of architecture and general residential construction, and testified on behalf of State National. Mr. Ther-iot testified that he inspected the Fraering [822]*822home and found on that date that there was standing water in the exterior utility room and dampness in the master bedroom. He determined that the leakage was not coming from the roof, that the front and rear porches were improperly sloped toward the house, that the roof design concentrated the flow of rain water toward the porches, that the door in the utility room did not have a metal threshhold, and that damp, coarse flashing on the brick ledge around the house was either missing or improperly installed in various locations. He opined that the improperly sloped porches, the lack of gutters at the front of the house, and improperly installed flashing were the primary causes for the seepage of water into the house; he also thought that the weep holes in the brick ledge around the house were possibly clogged. Mr. Theriot further stated that the slab cracking noted by Mr. Sandifer in the living room was normal in the region around New Iberia, and he did not assign any significance to the presence of a tapered ⅛ inch crack in the living room.

In March of 1988, at State National’s request, Mr. Theriot’s work crew made the recommended corrections to the Fraering home at a cost of approximately $6000. When the work crew dismantled some of the bricks, Mr. Theriot confirmed that the weep holes in the brick ledge were indeed clogged, and the damp, coarse flashing had been improperly installed when the house was built. Upon Mr. Theriot’s suggestion a general silicon sealant was also applied to the bricks around the exterior of the house to deter the penetration of water through them.

The record further shows that State National, at its expense, also replaced the carpeting in the Fraerings’ master bedroom.

After completing the repairs, Mr. Theriot visited the Fraering home on a rainy day and advised the court that after staying approximately thirty minutes in the house, he noted no water seepage. The Fraerings disagreed, contending that seepage recurred afterwards.

In its oral reasons for judgment the trial court determined that there were latent defects in the house which, had the Fraer-ings known of these conditions, they would not have purchased. Neither party to this action takes exception to this finding of the trial court.

In reviewing the record of this matter, it is clear that the trial court was presented with conflicting expert testimony regarding the origin of the Fraerings’ water seepage problem. After thoroughly reviewing the transcript of these proceedings, we can not say that the trial court abused its discretion in favoring the testimony of Mr. Theri-ot over that of Mr. Sandifer in its determination of the causes of the water seepage.

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542 So. 2d 820, 1989 La. App. LEXIS 737, 1989 WL 37026, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fraering-v-state-national-bank-lactapp-1989.