Saad v. Anderson

416 So. 2d 188, 1982 La. App. LEXIS 7535
CourtLouisiana Court of Appeal
DecidedMay 25, 1982
DocketNo. 14711
StatusPublished
Cited by5 cases

This text of 416 So. 2d 188 (Saad v. Anderson) 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
Saad v. Anderson, 416 So. 2d 188, 1982 La. App. LEXIS 7535 (La. Ct. App. 1982).

Opinion

LEAR, Judge.

Plaintiffs, Nabil Saad and his wife, Gertrude Prince Saad, filed this suit seeking damages for breach of contract and a reduction in the purchase price of a house which they bought from defendants, Jan David Anderson and his wife, Jane Barrett Anderson. Defendants answered, generally denying the allegations of plaintiffs’ petition and further averring that the defects were apparent. At the close of trial, the district court rendered judgment in favor of plaintiffs in the sum of $60.00 on the demand for breach of contract and granted a $4,960.00 reduction in the purchase price of the home. The trial court also assessed expert witnesses’ fees in the sum of $750.00 and awarded plaintiffs $1,500.00 attorneys fees. Defendants then moved for a new trial, which was subsequently denied. Defendants have suspensively appealed to this court; and plaintiffs have answered the appeal, seeking increases in the reduction of the purchase price and attorneys fees.

The act of sale of the house in question was passed on July 24, 1978. The purchase price was $83,400.00. Prior to the sale, plaintiffs had inspected the home on two occasions. On these two occasions, plaintiffs had noticed various minor defects. In [190]*190the purchase agreement, defendants agreed to correct these defects. The trial court concluded, and the record supports, the fact that the only defect included in that list not to be repaired were some gaps in the wall alongside the fireplace.

Shortly after moving in, plaintiffs began to experience more substantial problems with the house. These problems allegedly involved (1) an exterior wood deck which connects to the rear of the house, (2) a water leak in the chimney, (3) voids in the exterior mortar joints, (4) a large crack in the driveway and defects in the garage, (5) an odor emanating from the dining room floor, (6) an unlevel floor in the breakfast room, (7) lack of sufficient support rafters in the attic, (8) water-damaged carpet in the living room, and (9) lack of drainage in the back yard. After failing in their efforts to have defendants repair the alleged defects, plaintiffs filed the instant suit for a reduction in the purchase price, as well as for breach of contract for the defendants’ alleged failure to repair the items included in the purchase agreement.

At the close of trial, the trial court ruled that defendants had breached the purchase agreement by failing to repair the gaps at the side of the fireplace. The trial court determined that the cost to repair these gaps would be $60.00 and awarded that amount as damages. The trial court also awarded plaintiffs a reduction of $4,960.00 in the purchase price of the house based upon the following redhibitory defects and costs of repairing same:

(1) Exterior wood deck.$1,000.00
(2) Drainage problem under deck . 400.00
(3) Water leak in chimney. 200.00
(4) Voids in mortar joints. 350.00
(5) Crack in driveway and miscellaneous defects in garage. 1,950.00
(6) Unlevel floor in breakfast room. 700.00
(7) Added rafter support in attic. 100.00
(8) Water-damaged carpet in living room 360.00
TOTAL .$5,060.001

The trial court also concluded that Mr. Anderson was the builder of the home and, thus, was liable for attorneys fees of $1,500.00 under Article 2545 of the Louisiana Civil Code. The trial court expressly found that plaintiffs had not proven that the problem with the dining room floor and the back yard drainage were redhibitory defects. Hence, he disallowed a reduction based upon these items.

The issues before this court on appeal are:

(1) Did the alleged redhibitory defects exist at the time of the sale of the house?

(2) Did the trial court err in finding that the defects were not discoverable by “simple inspection” within the meaning of Louisiana Civil Code Article 2521?

(3) Did the trial court err in finding that Mr. Anderson was the builder of the house and, as such, liable for attorneys fees under Article 2545?

(4) Did the trial court err in not allowing a greater reduction based upon the defect in the wooden deck and in disallowing any reduction based upon the back yard drainage problem?

(5) Are plaintiffs entitled to an increase in attorneys fees for services rendered on appeal?

On appeal, defendants contend that plaintiffs failed to prove that the alleged defects existed at the time of the sale of the house. It is well established that a successful plaintiff in a redhibitory action must prove, inter alia, that the alleged defect or defects existed at the time of the sale. La.Civ.Code art. 2530; Moreno’s, Inc. v. Lake Charles Catholic High Schools, Inc., 315 So.2d 660 (La.1975); Ball v. Ford Motor Company, 407 So.2d 777 (La.App. 1st Cir. 1981). The trial court’s conclusion on this factual issue should not be disturbed unless a review of the entire record reveals that it is clearly wrong. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978); Ball v. Ford Motor Company, supra.

[191]*191In the instant case, the record supports the trial court’s finding that the defects existed at the time of the sale. The testimony of Mr. W. J. Evans, an architect, stipulated by the parties to be an expert in the field of home construction and repairs, indicated that all of the defects resulted from poor construction. Mrs. Saad also testified with respect to certain defects, that Mr. Anderson had told her about them and promised to repair them. The testimony of Marge B. Mackey, the real estate agent who brought the parties together, corroborated Mrs. Saad’s testimony in this latter respect. Under these circumstances, the record reveals a reasonable factual basis for the trial court’s conclusion and that conclusion is not clearly wrong. See Arcene aux v. Domingue, supra.

In addition to proving that the defect or defects existed at the time of the sale, plaintiff in a redhibitory action also has the burden of establishing that the defects were not apparent, i.e. they were not discoverable by “simple inspection”. La. Civ.Code art. 2521. In the instant case, the trial court found that the defects were not apparent. The testimony of Mrs. Saad that she and her husband inspected the house on two occasions and did not notice defects, other than those included in the list in the purchase agreement, supports the trial court’s conclusion. Mrs. Saad further testified that the defects did not appear until after plaintiffs had already moved into the house. Ms. Mackey also testified that she did not notice the defects prior to the sale, except for those which defendants promised to repair. Hence, the trial court’s conclusion is not clearly wrong. See Arceneaux v. Domingue, supra.

Defendants also contend that the trial court erred in finding Mr. Anderson to be the builder of the home and, as such, liable for attorneys fees under Louisiana Civil Code Article 2545.2

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Bluebook (online)
416 So. 2d 188, 1982 La. App. LEXIS 7535, Counsel Stack Legal Research, https://law.counselstack.com/opinion/saad-v-anderson-lactapp-1982.