Landry v. Istre

510 So. 2d 1310, 1987 La. App. LEXIS 9747
CourtLouisiana Court of Appeal
DecidedJune 26, 1987
DocketNo. 86-660
StatusPublished

This text of 510 So. 2d 1310 (Landry v. Istre) 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
Landry v. Istre, 510 So. 2d 1310, 1987 La. App. LEXIS 9747 (La. Ct. App. 1987).

Opinion

DOMENGEAUX, Judge.

In this suit plaintiff, Laura Ann Landry, seeks to rescind a contract of exchange wherein she exchanged certain immovable property plus a balance of money for immovable property. She appeals the judgment of the district court in favor of defendants, Carlton Istre and Louella Istre. We affirm.

On March 9, 1983, Mrs. Landry entered into an act of exchange with Carlton Istre and Louella Istre. In the exchange, Mrs. Landry received approximately six acres of land near Andrus Cove, in Jefferson Davis Parish. This property contained a house, which Mrs. Landry subsequently used as her residence, two rent houses, a bam, formerly used in pig farming, and a chicken coup. Carlton and Louella Istre received a lot and house in the Edgewood Addition to the town of Lake Arthur, as well as $18,500.00 in cash and a promissory note signed by Mrs. Landry as maker for $71,500.00.

[1312]*1312Following the transaction, Mrs. Landry brought this suit alleging that rescission of the contract is warranted under the Civil Code articles on redhibition and lesion. More specifically, she contended that Carlton Istre represented to her that two natural gas pipelines which traversed the property she received, were no longer in use. She contended further that Mr. Istre was aware that she intended to use the property as a mobile home park, and that, because one of the natural gas lines is still “live”, she is unable to profitably establish a mobile home park on the property. In addition, Mrs. Landry claimed that the property she received had a value of less than $60,000.00 at the time of the exchange, and that, therefore, the $90,000.00 balance she paid exceeded by more than one-half the total value of the property.

The trial court found that Mrs. Landry was aware of the existence of the live pipeline at the time of the transaction and that, in any event, the location of the pipeline does not prevent her from establishing a mobile home park on the property. He concluded, therefore, that Mrs. Landry was not entitled to rescind the contract based on redhibition. The trial judge also found that the value of the property Mrs. Landry received was greater than $60,000.00, and concluded that the exchange could not be rescinded on the basis of lesion. Mrs. Landry assigns as error these findings of fact made by the trial judge.

REDHIBITION

We first note that under Civil Code article 2667 "[a]ll the other provisions relative to the contract of sale apply to the contract of exchange.” Therefore, the Civil Code articles relative to redhibitory sales are applicable to contracts of exchange.

With respect to redhibition, the Civil Code provides the following pertinent articles:

Redhibition is the avoidance of a sale on account of some vice or defect in the thing sold, which renders it either 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 vice. La.C.C. art. 2520;
Apparent defects, that is, such as the buyer might have discovered by simple inspection, are not among the number of redhibitory vices. La.C.C. art. 2521; and
A declaration made in good faith by the seller, that the thing sold has some quality which it is found not to have, gives rise to a redhibition, if this quality was the principle motive for making the purchase. La.C.C. art. 2529.

Mrs. Landry contended at trial that Mr. Istre represented that the pipeline traversing the six acre tract was no longer in use, and that it, therefore, would not interfere with her plans to develop a mobile home park on the property. She argues that the fact that the natural gas pipeline is in use is redhibitory because the pipeline company’s right-of-way limits the amount of space available to place mobile home trailers, preventing her from developing a profitable park. She argued that Mr. Istre’s representation as to the pipeline and the property’s suitability for a mobile home park are grounds for a rescission of the contract under article 2529, stating that her principal cause for making the exchange was to develop a mobile home park.

The trial judge concluded, however, that Mr. Istre had not represented to Mrs. Landry that the pipeline was no longer in use. He further concluded that, in any event, Mrs. Landry failed to prove that the existence of the pipeline prevented her from developing a mobile home park. After a review of the record we conclude that the trial judge was not manifestly erroneous in making these factual determinations.

Mrs. Landry, Mr. Istre, and Robert Istre testified at trial with regard to Mr. Istre’s representations concerning the pipeline.

The evidence reveals that the existence and location of the pipeline was marked by [1313]*1313a number of prominent warning signs on the property. Mrs. Landry testified that, after she saw the warning signs, Mr. Istre told her that the lines were dead and that he was going to see about using these dead lines to run the water for fire hydrants.

On the other hand, Mr. Istre testified that he did not tell Mrs. Landry that the line traversing the property was no longer in use. He stated that she was aware that the pipeline existed because he showed her where it ran. He also testified that he told her that an older pipeline was dead and was to be used to run water for the fire hydrants, but that he never stated that the pipeline in question was dead.

Robert Istre, Carlton Istre’s son, testified that he was present when his father showed Mrs. Landry where the pipeline traversed the property. He stated that at that time his father did not tell Mrs. Landry that the line was dead, but that he did tell her that another line under the property was no longer being used.

We cannot conclude, after reviewing the testimony received at trial, that the trial judge was clearly wrong in finding that Mr. Istre did not represent that the pipeline was no longer in use. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

Nor can we conclude that the trial judge was clearly wrong in finding that the location of the pipeline would not prevent Mrs. Landry from using the property as a mobile home park. Mr. Istre testified that because he had previously considered using the property as a trailer park, the pipeline company agreed to run the line in a manner which would not interfere with his plans for the park. He testified further that the reason he did not pursue developing the park was because of the start up cost, not because of the location of the pipeline.

The evidence also showed that the actual location of the pipeline was different from that shown on a right-of-way agreement, which only showed the proposed location of the line. Mrs. Landry relies on this proposed location in contending that the pipeline prevents her from developing the trailer park. She did not present any evidence showing that the actual location of the pipeline prevented her from developing a trailer park on the property. The trial judge concluded that this proposed location was not in fact the actual location of the pipeline. The testimony of Mr. Istre amply supports this finding. The trial judge was not clearly wrong in concluding that the pipeline as actually located did not prevent Mrs. Landry from establishing a mobile home park on the property.

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Bluebook (online)
510 So. 2d 1310, 1987 La. App. LEXIS 9747, Counsel Stack Legal Research, https://law.counselstack.com/opinion/landry-v-istre-lactapp-1987.