Greenslit v. Succession of Hero

513 So. 2d 405, 1987 La. App. LEXIS 10058
CourtLouisiana Court of Appeal
DecidedSeptember 15, 1987
DocketCA-6144
StatusPublished
Cited by3 cases

This text of 513 So. 2d 405 (Greenslit v. Succession of Hero) 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
Greenslit v. Succession of Hero, 513 So. 2d 405, 1987 La. App. LEXIS 10058 (La. Ct. App. 1987).

Opinions

ARMSTRONG, Judge.

This appeal results from a suit in quanti minoris in which plaintiffs seek a reduction in the sales price of their home. Plaintiffs claim that the composition of the roof, gutters and drains was misrepresented to them and that there were hidden defects in the swimming pool and in the attached porch which rendered them unsafe for the purpose for which they were intended.

Plaintiffs purchased their home, located at 1213 Third Street, New Orleans, Louisiana, on February, 1, 1978 from the Succession of Alvin Hero. The house, a hundred and twenty year-old Garden District mansion, was originally listed by the relator, Gertrude Gardner, Inc., for $450,000. The house was described in Gardner’s sales information sheets as having an “ornamental slate roof” and “all copper drains and gutters.” After lengthy negotiations, plaintiffs purchased the house for $334,000.

Shortly after purchase, plaintiffs discovered that the swimming pool needed re-plastering, a new filter system, a new pump motor and other repairs. They estimated expenditures of $4,700 in order to bring the pool up to standard. Although the sellers authorized the purchase of a new pump motor there is no evidence that [407]*407they ever compensated plaintiffs for its purchase. The defendants refused to pay for any other needed pool repairs.

In July of 1978 plaintiffs learned that the roof shingles were composed of an asbestos imitation slate material rather than natural slate. They also discovered that some of the drains and gutters servicing the roof were galvanized steel instead of copper. The estimated cost at that time to replace the roof with natural slate and to install new copper drains and gutters was $29,690.

Plaintiffs filed suit on January 24, 1979 seeking a reduction in the selling price or damages totalling $34,390 relative to the defects in the roof and pool. On April 1, 1981, plaintiffs filed an amending and supplemental petition alleging that hidden defects in one of the porches necessitated its replacement at a cost of $12,341.95. Plaintiffs maintain that had they known of the true composition of the roof and gutters, and of the hidden defects in the porch and pool they would not have purchased the house for the amount paid.

The defendants subsequently filed a third-party demand against Gertrude Gardner, Inc., alleging that if any misrepresentation existed at the time of the sale it was through the fault of the real estate company or its agents. •

The trial court, in judgments rendered on June 28, 1985 and on October 11, 1985 awarded plaintiffs $4,594.55 for repair of the pool, and $12,341.95 for the repair of the porch. The court held that plaintiffs' written acceptance of the roof and waiver of the inspection contingency clause during the sale negotiations precluded any subsequent reduction in the sales price. The court dismissed all other claims, finding no misrepresentation on the part of the sellers or Gertrude Gardner, Inc. Both plaintiffs and defendant appeal. We affirm.

In their first assignment of error defendants maintain that the trial court erred in awarding $4,594.55 for pool repairs. They argue that the pool contained no hidden defects at the time of purchase nor was the pool unfit for use since it had been used prior to the purchase and was used after the sale by the plaintiffs without the benefit of the repairs. Defendants argue that if the pool did contain defects they were readily apparent upon Reynoir’s initial inspection and thus cannot support a claim for reduction. LSA-C.C. Art. 2521.

The Louisiana Civil Code establishes certain remedies which a buyer may pursue upon discovery that the object he has purchased contains some hidden vice or defect. He may seek an action in redhibition to rescind the sale when the defect in the thing sold renders it absolutely useless, or its use so inconvenient and imperfect that it must be supposed that the buyer would not have purchased it had he known of the defect. LSA-C.C. Art. 2520. Where the defect in the thing sold renders it useless or unsuited for its intended purpose or diminishes its value, or where the object lacks some quality that it was purported to possess, the buyer may seek either a redhi-bition or a reduction in the purchase price through an action in quanti minoris. LSA-C.C. Arts. 2541 and 2542; Wiltz v. Dixie Auto Sales, Inc., 315 So.2d 811 (La.App. 3rd Cir.1975); Sikes v. B & S Supply, Inc., 164 So.2d 81 (La.App. 2nd Cir.1964). An action in quanti minoris is governed by the same statutory rules which apply to actions in redhibition. LSA-C.C. Art. 2544; Gonzales v. Schultis, 427 So.2d 669 (La.App. 4th Cir.1983).

In order to be successful in a suit for redhibition or quanti minoris, a plaintiff must prove that the thing contained a hidden defect, that the defect existed at the time of the sale, and that the defect could not have been discovered by ordinary inspection. He need not prove the cause of the defect. Millspaw v. Knight, 430 So.2d 1207 (La.App. 1st Cir.1983); Broussard v. Breaux, 412 So.2d 176, writ denied 416 So.2d 115 (La.App. 3rd Cir.1982); Gonzales v. Schultis, supra.

Although the defendants’ family and friends used the pool until early September 1977, the pool remained unused and unmaintained between September 1977 and the sale on February 1, 1978. Plaintiff Gus Reynoir testified that he had the pool inspected by Harold Brouphy Jr., owner of Pelican Pool and Patio Specialtes, Inc. on [408]*408January 13, 1978, two weeks prior to the act of sale. Reynoir stated that he couldn’t tell whether repairs were needed or not because the pool was “black and greenish” and the bottom was covered with leaves and other debris. Brouphy informed Rey-noir at that time that he suspected that the pool may need replastering and other repairs, but that the pool had to first be drained and cleaned in order to determine the extent of deterioration, if any. After draining and cleaning the pool, Brouphy notified Reynoir on February 7, 1978, two weeks after the act of sale, that the pool needed replastering. He stated that the deterioration had been caused by a chemical imbalance in the water which resulted in a leaching of the plaster into the pool water. He reported that the deterioration was so severe that the pool presented a health hazard to swimmers.

Reynoir moved into the house in July of 1978 and then contacted Brouphy to report that the pool was leaking water in the. patio area. Upon inspection Brouphy discovered that the filter backwash line was broken beneath the patio causing water to seep through the concrete creating a wet spot on the patio. This condition had apparently existed for some time. Estimates were submitted for this repair as well as for rewiring and other maintenance items.

At trial Brouphy testified that although a layman might have been able to detect some plaster flaking on the side walls of the pool, only an expert would have been able to determine the deterioration to the floor of the pool prior to draining.

That a defect is easily ascertainable by an expert upon examination does not mean that the defect is apparent upon simple inspection. The reasonably prudent buyer is not held to have the knowledge and specialized training of an expert, nor is he required to deface the thing purchased while inspecting it. Fraser v. Ameling, 277 So.2d 633 (La.1973). Foreman v. Jordan, 131 So.2d 796 (La.App. 3rd Cir.1961).

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