Roger A. Vitter v. Samuel Allen Blaize and Cheryl Harris Blaize

• Court: Louisiana Court of Appeal
• Decided: September 20, 2023
• Docket: 2022CA1369
• Status: Unknown

Opinion

STATE OF LOUISIANA

COURT OF APPEAL

FIRST CIRCUIT

2022 CA 1369

ROGER A. VITTER

VERSUS

SAMUEL ALLEN BLAIZE AND CHERYL HARRIS BLAIZE

Judgment Rendered: SEP 2 0 2023

On Appeal from the Twenty -Second Judicial District Court In and for the Parish of St. Tammany State of Louisiana Docket No. 2016- 10221 Honorable Richard A. Swartz, Judge Presiding

Ross F. Lagarde Counsel for Plaintiff/Appellant Jeffrey G. Lagarde Roger A. Vitter Alexander L. H. Reed Slidell, Louisiana

Rene Paul Frederick Counsel for DefendantsJAppellees Jeanne M. Mauldin Samuel Allen Blaize and Covington, Louisiana Cheryl Harris Blaize

BEFORE: McCLENDON, HOLDRIDGE, AND GREENE, JJ.

1 McCLENDON, J.

In this redhibition case, the plaintiff appeals the trial court' s judgment in favor of

the defendants, dismissing all of his claims with prejudice. For the reasons that follow,

we affirm.

FACTS AND PROCEDURAL HISTORY

On June 18, 2014, Roger A. Vitter purchased a condominium located in Mandeville,

Louisiana, from Samuel Allen Blaize and Cheryl Harris Blaize. Mr. Vitter agreed to

purchase the property " as is," expressly waiving any rights in redhibition. In 2015, Mr.

Vitter noticed cracks in the walls, buckling of sheetrock, and doors that would not close.

On January 14, 2016, Mr. Vitter filed a Petition in Redhibition and Fraud against

Mr. and Mrs. Blaize, alleging that they misrepresented the condition of the foundation of

the condominium to him and failed to disclose a known foundation defect. The trial court

held a bench trial on March 8 and 9, 2022. After taking the matter under advisement,

on August 10, 2022, the trial court signed a Judgment, and separate Reasons for

Judgment, in favor of the Blaizes, finding that the evidence presented at trial was

insufficient to establish that the foundation was defective when Mr. Vitter purchased the

property in 2014. The trial court specifically found that Mr. Vitter failed to meet his

burden of proof on his claim that the Blaizes failed to disclose a known foundation defect

or misrepresented the condition of the foundation in order to obtain an unjust advantage.

Accordingly, the trial court dismissed with prejudice all claims of Mr. Vitter against the

Blaizes, and Mr. Vitter appealed.

DISCUSSION

Redhibition is the avoidance of a sale on account of some vice or defect in the

thing sold which renders the thing 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. LSA-C. C. art. 2520; Ross v. Premier Imports, 96- 2577 ( La. App.

1 Cir. 11/ 7/ 97), 704 So. 2d 17, 21, writ denied, 97- 3035 ( La. 2/ 13/ 98), 709 So. 2d 750.

To prevail in a claim for redhibition, a purchaser must prove that. ( 1) the thing sold is

absolutely useless for its intended purpose or its use is so inconvenient that had he known

of the defect, he would never have purchased it; ( 2) the defect existed at the time of the

is sale, but was not apparent; and ( 3) the seller was given an opportunity to repair the

defect. Ross, 704 So. 2d at 21.

The existence of a redhibitory defect is a question of fact, which cannot be

disturbed on appeal unless the record as a whole establishes that the finding is manifestly

erroneous or clearly wrong. Hoffmann v. B & G, Inc., 2016- 1001 ( La. App. 1 Cir.

2/ 21/ 17), 215 So. 3d 273, 277. Thus, an appellate court may not set aside a factfinder's

finding of fact in the absence of manifest error or unless it is clearly wrong. Rosell v.

ESCO, 549 So. 2d 840, 844 ( La. 1989). Where there are two permissible views of the

evidence, the fact finder' s choice between them cannot be manifestly erroneous or clearly

wrong. Ferrell v. Fireman' s Fund Ins. Co., 94- 1252 ( La. 2/ 20/ 95), 650 So. 2d 742,

745- 46.

The warranty against redhibitory defects is premised on LSA-C. C. art. 2520, etseq. Article 2520 provides;

The seller warrants the buyer against redhibitory defects, or vices, in the thing sold.

A defect is redhibitory when it renders the thing useless, or its use so inconvenient that it must be presumed that a buyer would not have bought the thing had he known of the defect. The existence of such a defect gives a buyer the right to obtain rescission of the sale.

A defect is redhibitory also when, without rendering the thing totally useless, it diminishes its usefulness or its value so that it must be presumed that a buyer would still have bought it but for a lesser price. The existence of such a defect limits the right of a buyer to a reduction of the price.

The extent of a seller' s liability to a buyer for breaching this warranty depends on

whether the seller knew, or did not know, of the defect. Minton v. Acosta, 2021- 1180

La. App. 1 Or. 6/ 3/ 22), 343 So. 3d 721, 726. The seller owes no warranty for defects in

the thing that were known to the buyer at the time of the sale, or for apparent defects

that should have been discovered by a reasonably prudent buyer of such things. LSA-

C. C. art. 2521; Minton, 343 So. 3d at 726. However, a seller who knows that the thing

he sells has a defect but omits to declare it, or a seller who declares that the thing has a

quality that he knows it does not have, is liable to the buyer for the return of the price

with interest from the time it was paid, for the reimbursement of the reasonable expenses

3 occasioned by the sale and those incurred for the preservation of the thing, and also for

damages and reasonable attorney fees. LSA- C. C. ark. 2545.

A seller and buyer may agree to exclude the warranty against redhibitory defects;

however, the terms of the exclusion must be clear and unambiguous and must be brought

to the attention of the buyer. LSA- C. C. art. 2548. The Act of Cash Sale signed by Mr.

Vitter contained language that the sale was " AS IS, WHERE IS," and " WITH ALL FAULTS"

and was sufficient to waive redhibition. 1 However, Mr. Vitter alleges that his consent to

this waiver was vitiated by the Blaizes' fraud.

While an exclusion or limitation of the warranty against redhibitory defects is

usually effective, LSA- C. C. art. 2548 further provides that a buyer is not bound by an

otherwise effective exclusion or limitation of the warranty when the seller has declared

that the thing has a quality that he knew it did not have. Under this article, an otherwise

effective exclusion or limitation of the warranty against redhibitory defects is not effective

if the seller commits fraud, as defined in the Civil Code, upon the buyer. Shelton v.

Standard/ 700 Associates, 2001- 587 ( La. 10/ 16/ 01), 798 So. 2d 60, 64. Thus, Mr.

Vitter can only obtain relief from the redhibition waiver if he can show fraud in the

inducement of the contract.

Fraud is a misrepresentation or a suppression of the truth made with the intention

either to obtain an unjust advantage for one party or to cause a loss or inconvenience to

the other. LSA- C. C. art. 1953. Fraud does not vitiate consent when the party against

whom the fraud was directed could have ascertained the truth without difficulty,

inconvenience, or special skill. LSA- C, C. art. 1954. The fraud alleged by Mr. Vitter was

the Blaizes` failure to disclose knowledge of a foundation defect prior to the sale.

In his sole assignment of error on appeal, Mr. Vitter contends that the trial court

erred in determining that he failed to meet his burden of proof on his fraud claim.

1 The Act of Cash Sale provided, in part:

Vendor and Purchaser covenant and agree that the Property and all buildings, improvements and component parts thereon, ... are conveyed by Vendor and accepted by Purchaser " AS IS, WHERE IS," and " WITH ALL FAULTS," without any warranty of any kind whatsoever, ... and without regard to the presence of apparent or hidden defects and with purchaser's full and complete waiver of any and all rights for the return of all or any part of the purchase price by the reason of any such defects.... Without limiting the foregoing, purchaser expressly waives any warranty as to ... foundation."

a] Particularly, he asserts that the Blaizes intentionally did not disclose their knowledge of

the structural problems regarding the foundation, including the recommendation by Cable

Lock Foundation Repair, Inc. ( Cable Lock) for the installation of additional pilings. Mr.

Vitter also argues that the Blaizes knowingly and intentionally misrepresented their

knowledge of the foundation in the disclosure form executed prior to the sale of the

property. According to Mr. Vitter, had he known of any foundation issue he would not

have purchased the condominium, and the intentional silence by the Blaizes was

fraudulent, which he proved at trial.

The parties stipulated to the introduction of several exhibits and presented witness

testimony at trial. The evidence and testimony established that in 2004, Cable Lock

installed fourteen pilings along the right exterior wall of the home and in the garage area

for a previous owner. Cable Lock's foundation work included a lifetime foundation

warranty fully transferable to all subsequent owners of the condominium. The Blaizes

purchased the home in 2009. Prior to their purchase, the Blaizes were provided

inspection and engineering reports from 2004, 2006, and 2008, which included detailed

information regarding the 2004 Cable Lock repairs and subsequent evaluations of the

foundation.

In 2013, the Blaizes decided to list the condominium for sale. Because of the

cracks in the side wall above where the prior foundation work had been performed and

the bowing of an interior wall, Mrs. Blaize called Cable Lock to make an appointment for

an inspection, stating that she was aware of the lifetime transferable warranty the Blaizes

had in connection with the 2004 repairs.

In August of 2013, Darren Averitt, a twenty -five-year Cable Lock employee, met

Mrs. Blaize at the condominium to evaluate the foundation. Mrs. Blaize testified that she

wanted " to know if these cracks are a problem." Mr. Averitt took elevation readings for

the entire home and advised Mrs. Blaize that the right rear corner of the home was low.

According to Mrs. Blaize, Mr. Averitt told her that the cracks were not a problem and

stated, " we can fix it if you would like us to." She testified that Mr. Averitt never

mentioned anything about pilings, and he did not give Mrs. Blaize a quote or drawings of

any proposed work. Mrs. Blaize further testified that she told Mr. Averitt that the right

5 rear corner was the same as when they purchased the condominium and had not caused

any problems. The Blaizes chose not to raise the right rear corner of the condominium

at that time.

When the property was listed, the Blaizes acknowledged on the property disclosure

form given to Mr. Vitter that the foundation had undergone previous repairs. The Blaizes

also checked " NK" for " no knowledge" to the question on the form asking if there were

any defects in the foundation. Mr. Blaize testified that he gave to their real estate agent,

Gregg Tepper, the historical engineering reports from 2004, 2006, and 2008 regarding

the foundation, which indicated that the foundation had stabilized since the repairs in

2004. Mr. Tepper testified that he was one hundred percent confident that he gave the

reports to Mr. Vitter's real estate agent.

After his purchase of the property, beginning in the winter and spring of 2015, Mr.

Vitter noticed issues in the condominium. He stated that he saw significant cracks in the

walls, buckling of sheetrock, and doors that would not close. Recalling the lifetime

warranty for the work previously performed by Cable Lock, Mr. Vitter called Cable Lock

for someone to come out and evaluate the property.

Travis Hartley, a Cable Lock employee, performed a remeasure of the foundation

in September of 2015. During the course of the inspection, Mr. Vitter learned for the first

time that Cable Lock came out two years earlier, in August of 2013, to evaluate the

property for the Blaizes. Mr. Hartley testified that the back area of the condominium had

experienced a major " heave" sometime between August of 2013 and September of 2015.

Mr. Hartley observed a three -and -a -half-inch heave, which indicated a problem with

saturation of the soil. Mr. Hartley also stated that Cable Lock pilings only prevent settling

and do not prevent a heave.

John Catalanotto, a professional civil engineer, who testified as an expert for the

Blaizes, stated that he analyzed Cable Lock' s measurements of the condominium from

March of 2005, April of 2005, December of 2005, August of 2013, and September of

2015. Mr. Catalanotto testified that from March of 2005 to August of 2013 there was

some slight movement in the foundation, but it was stable, and any movement during

that period was within normal limits. Mr. Averitt also testified at the trial that all

1.1 foundations move over time within certain normal limits and that from 2005 to 2013 there

had not been a lot of movement in the foundation.

Mr. Catalanotto further testified, however, that between August of 2013 and

September of 2015 there was a rise in the foundation. He stated that there was a heave

in the right rear corner in the area where Cable Lock had made its repairs. It was Mr.

Catalanotto' s opinion that excessive rainfall in April of 2015, coupled with the clay soils

under the foundation, caused the heave. Further, he opined that, from an engineering

perspective, the foundation was not defective in August of 2013 and that the current

condition of the foundation does not rise to the level of a defect.

The trial court found that there was insufficient evidence to establish that the

foundation was defective when Mr. Vitter purchased the condominium in 2014. The trial

court also determined that upon listing the condominium for sale, Mr. Blaize gave his real

estate agent, for the purpose of disclosing all relevant information, copies of the

documents regarding the foundation given to him when he purchased the condominium.

The trial court further found that Mr. Vitter received a property disclosure form executed

by the Blaizes that clearly indicated prior foundation repairs and was marked " No

knowledge" in response to the question as to whether there were any defects regarding

the foundation. Based on these facts, the trial court ruled that Mr. Vitter had not proven

that the Blaizes failed to disclose a known foundation defect in order to obtain an unjust

advantage. Accordingly, the trial court rendered judgment in favor of the defendants and

dismissed all of Mr. Vitter's claims against them.

On our review, we find no manifest error by the trial court. Although Mr. Vitter

argues that the Blaizes intentionally failed to disclose their knowledge of the foundation' s

structural problems or of Cable Lock' s recommendation to install additional pilings, the

record provides a reasonable basis for the trial court's conclusion that the Blaizes had no

knowledge of a redhibitory defect in the foundation at the time of the sale of the

condominium to Mr. Vitter. Mrs. Blaize testified that Mr. Averitt told her that the

measurements he took in August of 2013 " are really no problem." When Mr. Averitt

informed Mrs. Blaize that the back right corner of the condominium was low, Mrs. Blaize

testified that he did not tell her that she had to fix it, and she never had a conversation

7 about pilings. The Blaizes specifically stated that there had been previous repairs to the

foundation in their disclosure form, but represented that they had no knowledge of a

current defect in the foundation.2 Moreover, the trial court was presented with expert

testimony that the foundation issues were the result of a heave of the foundation rather

than a settling of the foundation and that this heave occurred in 2015 after the sale.

At trial, the factFinder is charged with assessing the credibility of the witnesses and

is free to accept or reject, in whole or in part, the testimony of any witness. Muse v.

Louisiana Department of Public Safety and Corrections, Office of Probation and

Parole, 2022- 0458 ( La. App. 1 Cir. 11/ 4/ 22), 355 So -3d 620, 628 n. 13. Where there is

conflict in testimony, reasonable evaluations of credibility and reasonable inferences of

fact should not be disturbed upon review. Further, when presented with two permissible

views of the evidence, the factFinder's choice between them cannot be manifestly

erroneous or clearly wrong. Where the factfinder's conclusions are based on

determinations regarding the credibility of witnesses, the manifest error standard

demands great deference because only the trier of fact can be aware of the variations in

demeanor and tone of voice that bear so heavily on the listener's understanding and

belief in what is said. Kott v. Kott, 2020- 0873 ( La. App. 1 Cir. 4/ 16/ 21), 324 So. 3d 165,

171--72.

We find that the trial court' s factual findings are reasonable in light of the record

viewed in its entirety. Even were we to have weighed the evidence differently, the trial

court was not clearly wrong in finding the lack of a redhibitory defect in the foundation

of the condominium when Mr. Vitter purchased the property.

CONCLUSION

Considering the above, we affirm the August 10, 2022 judgment of the trial court

in favor of the defendants, Samuel Allen Blaize and Cheryl Harris Blaize. All costs of this

appeal are assessed to the plaintiff, Roger A. Vitter.

AFFIRMED.

2 Additionally, knowing that the foundation had been previously repaired, Mr. Vitter could have investigated further prior to the sale, but chose not to do so.

N.