Roger A. Vitter v. Samuel Allen Blaize and Cheryl Harris Blaize ( 2023 )

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.
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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
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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
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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
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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
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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.