Newton v. Dongieux

145 So. 3d 478, 13 La.App. 5 Cir. 776, 2014 WL 2861551, 2014 La. App. LEXIS 1601
CourtLouisiana Court of Appeal
DecidedJune 24, 2014
DocketNo. 13-CA-776
StatusPublished
Cited by5 cases

This text of 145 So. 3d 478 (Newton v. Dongieux) 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
Newton v. Dongieux, 145 So. 3d 478, 13 La.App. 5 Cir. 776, 2014 WL 2861551, 2014 La. App. LEXIS 1601 (La. Ct. App. 2014).

Opinions

MARC E. JOHNSON, Judge.

|2In this redhibition case, Defendants/sellers, Gene Dongieux, Sr. and Rhonda Dongieux, appeal a judgment finding them liable to Plaintiffs/purchasers, William Newton and Elaine Newton, for damages in the amount of $50,815.00 and attorney’s fees in the amount of $42,182.50, plus court costs and judicial interest. For the reasons that follow, we reverse.

FACTS & PROCEDURAL HISTORY

Plaintiffs, the Newtons, filed a petition for damages on October 9, 2007 seeking damages in redhibition and breach of contract. They alleged that Defendants, the Dongieuxes,1 failed to disclose the extent of flooding around the pool and failed to disclose that the carport area flooded. The Newtons further alleged that the Don-gieuxes failed to complete the agreed upon repairs prior to the |sNewtons taking possession of the property. The Newtons sought redhibitory damages, specific performance for the terms of the contract, and attorney’s fees.2

The matter proceeded to a bench trial on March 25, 2013. The record shows that [480]*480in December 2006, Mrs. Newton was on a Christmas tour of homes in River Ridge when she fell in love with the home at 228 Garden Rd., owned by the Dongieuxes. Although the house was not for sale, Mrs. Newton expressed her desire to purchase the home to Ms. Dongieux. After several conversations, the Dongieuxes indicated they would sell the home for $1.4 million. Without any negotiations, the Newtons agreed to purchase the home for the requested price.

On February 5, 2007, the parties executed a property disclosure. On the property disclosure form, the Dongieuxes checked yes to question number four under “Section 1: Land,” which asked, “Has any flooding, water intrusion, accumulation, or drainage problem been experienced with respect to the land? If yes, indicate the nature and frequency of the defect at the end of this section.” The Dongieuxes explained on the form that “during a very hard rain, the backyard ponds water. Drains quickly.” Under “Section 3: Structure,” the Dongieuxes answered no to question 12, which asked, “Has any structure on the property ever taken water by flooding (rising water or otherwise)?”

At some point after signing the property disclosure form and prior to the Act of Sale, Mrs. Newton asked Ms. Dongieux about the “ponding” problem. According to Mrs. Newton, Ms. Dongieux explained that when it rained hard, a puddle formed where the sidewalks meet in the backyard by the pool. Ms. Dongieux testified that she gave Mrs. Newton the example of when she was having a birthday party for a friend and it rained before the party. Ms. Dongieux explained to Mrs. Newton that it stopped raining two hours before the party, during Rwhich time the water drained but left a puddle where the sidewalks crossed. Ms. Dongieux indicated that she was able to soak up the remaining puddle with a beach towel. Mrs. Newton testified that she was satisfied with this answer and did not obtain a specific inspection regarding the ponding or drainage in the backyard. Mr. Newton likewise stated that he was satisfied with the explanation, as relayed by his wife after she spoke with Ms. Dongieux, and did not seek a specific inspection regarding the ponding issue.

On February 15 and 16, 2007, the parties executed an agreement to purchase or sell. The agreement contained a waiver of redhibition clause that indicated the property was to be sold “AS IS” with a full waiver of redhibition of rights as explained in an attached addendum, which was also signed by all parties.

On February 21, 2007, the Newtons had the property inspected by Robyn Borde-lon, a licensed home inspector with House Call Home Inspection. Ms. Bordelon testified that she was not hired to inspect any issues regarding any flooding or ponding in the backyard, but rather her inspection was limited to the area directly around the foundation of the home and cabana area.

Also, on February 23, 2007, the Newtons had the pool inspected by Kevin Brouphy. Mr. Brouphy testified that he inspected the decking of the pool, the surface of the pool and the pool equipment. He stated that he noted a few things, but nothing exorbitant. He explained that he did not inspect the elevation of the pool or the grading around the pool and was not qualified to give an opinion about the elevation or grading.

The parties proceeded to the Act of Sale on April 30, 2007. The Act of Sale contained an express waiver of redhibition, which the Newtons acknowledged by signing immediately beneath the waiver clause. Although the Act of Sale occurred in April, the Newtons did not move into the house until after the end of June | ¡¡because of an [481]*481agreement between the parties that allowed the Dongieuxes to stay in the home until then.

The Newtons testified that on the day they received the keys to the property, it started raining and the backyard flooded. They explained that water drained into the pool and the carport behind the cabana flooded. They subsequently learned that the pool was eight to nine inches below the surrounding ground, so the water drained into the pool during a hard rain. In an attempt to alleviate the pool problem, the Newtons explored installing drainage, but discovered subsurface drains already existed. The Newtons ultimately had to raise the pool eight or nine inches, at a cost of $45,065.00.

To fix the carport flooding, the Newtons had to raise the slab approximately two and a half to three inches, at a cost of $4,600.00. While raising the slab, the Newtons learned that the stairs in the carport that led to the upstairs apartment were rotted from water exposure and had to be fixed. Since this remedial work, the Newtons have not experienced any flooding in the carport.

At the conclusion of trial, the trial court took the matter under advisement. It issued a written judgment on May 16, 2013 in favor of the Newtons for their redhibition claim, but denied their breach of contract claim. The trial court awarded $50,815.00 in damages, which included $1,150.00 for pool cleaning, $45,065.00 for raising the pool, and $4,600.00 for leveling the carport slab. It also awarded the Newtons attorney’s fees in the amount of $84,398.50. Thereafter, the Newtons filed a motion to modify judgment (seeking an increase in attorney’s fees), tax costs and assess judicial interest. On June 26, 2013, the trial court granted the motion and increased attorney’s fees to $42,182.50, taxed costs in the amount of $4,099.44, and awarded judicial interest. The Dongieux-es appeal the | (judgment finding them liable for redhibition and the amount awarded for attorney’s fees.

ISSUES

The Dongieuxes raise three issues on appeal: (1) the trial court erred in finding the property contained a redhibitory defect; (2) the trial court erred in determining the Dongieuxes were manufacturers of the property so as to apply a presumption of knowledge of any defects for purposes of redhibition; and (3) the trial court erred in awarding attorney’s fees because the Dongieuxes were not bad faith sellers, or alternatively the amount of attorney’s fees awarded was excessive.

DISCUSSION

Redhibition

The Dongieuxes argue that the trial court erred in finding the property’s propensity to flood was a hidden defect for purposes of redhibition because they disclosed the flooding problem to the Newtons prior to the sale of the home.

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Cite This Page — Counsel Stack

Bluebook (online)
145 So. 3d 478, 13 La.App. 5 Cir. 776, 2014 WL 2861551, 2014 La. App. LEXIS 1601, Counsel Stack Legal Research, https://law.counselstack.com/opinion/newton-v-dongieux-lactapp-2014.