95-1731 La.App. 4 Cir. 1/19/96, Jeffers v. Thorpe

• Decision Date: 19 January 1996
• Citation: 673 So.2d 202
• Parties: 95-1731 La.App. 4 Cir
• Court: Court of Appeal of Louisiana — District of US

Page 202

673 So.2d 202

95-1731 La.App. 4 Cir. 1/19/96

Marvin L. JEFFERS and Elizabeth C. Jeffers v. David C. THORPE and Iris Vandiver Thorpe.

No. 95-CA-1731.

Court of Appeal of Louisiana Fourth Circuit.

Jan. 19, 1996.

Rehearing Denied May 31, 1996.

Marvin L. Jeffers, Law Offices of Jack W. Harang, New Orleans, for Appellants.

Thomas M. Usdin, Gelpi, Sullivan, Carroll & Gibbens, New Orleans, for Appellees.

Before BARRY and KLEES and BYRNES, JJ.

[95-1731 La.App. 4 Cir. 1] BYRNES, Judge.

On January 7, 1994 defendants David and Iris Thorpe sold the residence bearing municipal numbers 1835 Upperline Street and 4810 Dryades St. to the plaintiffs, Marvin and Elizabeth Jeffers. On January 3, 1995 the Jeffers filed this redhibition claim against the Thorpes. The Thorpes moved for summary judgment relying primarily on the waiver of redhibition clause contained in the act of sale. The Jeffers appeal the granting of this motion by the trial court. We affirm.

The waiver of defects clause in the act of sale provides:

It is expressly agreed that the immovable property herein conveyed and all improvements and component parts, plumbing [emphasis added], electrical systems, mechanical equipment, heating and air conditioning systems, built-in-appliances, and all other items located hereon are conveyed by Seller and accepted by Purchaser "AS IS, WHERE IS," [emphasis original] without any warranties of any kind whatsoever, even as to the metes and bounds, zoning, operation, or suitability [emphasis added] of such properties for the use intended by the Purchaser, 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 reason of any such defects. Purchaser acknowledges and declares that neither the Seller nor any party, whomsoever acting or purporting to act in any capacity whatsoever on [95-1731 La.App. 4 Cir. 2] behalf of the Seller has made any direct, indirect, explicit or implicit statement, representation or declaration, whether by written or oral statement or otherwise, and upon which Purchaser has relied, concerning the existence or non-existence of any quality, characteristic or condition of the property herein conveyed. Purchaser has had full, complete and unlimited access to the property herein conveyed for all tests and inspections which Purchaser, in its sole discretion deems sufficiently diligent for the protection of its interests. [emphasis added] Purchaser expressly waives the warranty of fitness and the warranty against redhibitory vices and defects, whether apparent or latent, imposed by Louisiana Civil Code Articles 2478, 2501, and any other applicable state or federal law and the jurisprudence thereunder. Purchaser also waives any rights it may have in redhibition or to a reduction of the purchaser [sic] price pursuant to Louisiana Civil Code Articles 2520 through 2548, inclusive, in connection with the property hereby conveyed to it by Seller. By its signature Purchaser expressly acknowledges all such waivers, and its exercise of Purchaser's right to waive warranty pursuant to Louisiana Civil Code Article 2503.

The Jeffers complain that after they purchased the residence they discovered that the plumbing was not up to code and that it may have been done by unlicensed plumbers. The Jeffers do not suggest that the Thorpes represented otherwise, but argue instead that the Thorpes had an affirmative duty to disclose this fact. The Jeffers allege no facts which would tend to prove that the Thorpes took any affirmative action to either conceal the plumbing deficiencies or prevent the Jeffers from discovering them prior to sale. The Jeffers allege only that the Thorpes knew, but failed to disclose. The Thorpes filed an affidavit saying that they did not know of the code violations.

Appellate courts review summary judgments de novo, using the same criteria applied by trial courts to determine whether summary judgment is appropriate. Reynolds v. Select Properties, Ltd., 93-1480 (La. 4/11/94), 634 So.2d 1180; [95-1731 La.App. 4 Cir. 3] Schroeder v. Board of Supervisors of Louisiana State University, 591 So.2d 342, 345 (La.1991). A summary judgment shall be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact, and that the mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966(B). All evidence and inferences drawn from the evidence must be construed in the light most favorable to the party opposing the motion. Carr v. City of New Orleans, 622 So.2d 819, 822 (La.App. 4th Cir.1993), writ denied 629 So.2d 404 (La.1993); and Dibos v. Bill Watson Ford, Inc., 622 So.2d 677, 680 (La.App. 4th Cir.1993). To satisfy his burden, the party moving for the summary judgment must meet a strict standard by showing that it is quite clear as to what the truth is, and that excludes any real doubt as to the existence of material fact. Vermilion Corp. v. Vaughn, 397 So.2d 490 (La.1981). The papers supporting the position for the party moving for the summary judgment are to be closely scrutinized while the opposing papers are to be indulgently treated, in determining whether mover has satisfied his burden. Vermilion, supra.

Where the trial court is presented with a choice of reasonable inferences to be drawn from subsidiary facts contained in affidavits, exhibits, and depositions, reasonable inferences must be viewed in the light most favorable to the party opposing the motion. Duvalle v. Lake Kenilworth, Inc., 396 So.2d 1268 (La.1981). No summary judgment will be granted even if the trial court has grave doubts regarding a party's ability to establish disputed facts. Aydell v. Charles Carter & Co., Inc., 388 So.2d 404 (La.App. 1st Cir.), writ denied 391 So.2d 460 (La.1980). The fact that a party is unlikely to prevail at a trial on the merits is [95-1731 La.App. 4 Cir. 4] an insufficient basis for rendering a summary judgment against that party. Chapeuis v. Cassimano, 568 So.2d 606 (La.App. 4th Cir.), writ denied 571 So.2d 629 (La.1990). This is true no matter how small the chances of the party opposing the motion to ultimately prevail appear to be. Dearie v. Ford Motor Co., 583 So.2d 28 (La.App. 5 Cir.), writ denied 588 So.2d 1117 (La.1991). It is not the function of the trial court on a motion for summary judgment to determine or even inquire into the merits of the issues raised. Morris v. Louisiana Coca-Cola Bottling Co., Ltd., 354 So.2d 659 (La.App. 1st Cir.1977). The weighing of conflicting evidence on a material fact has no place in summary judgment procedure. Mecom v. Mobil Oil Corp., 299 So.2d 380 (La.App. 3rd Cir.1974), writ denied 302 So.2d 308 (La.1974). Testimony should neither be received nor considered, even with the consent of counsel, to decide a motion for summary judgment. Urban Management Corp. v. Burns, 427 So.2d 1310 (La.App. 2 Cir.1983); Hemphill v. Strain, 341 So.2d 1186 (La.App. 1st Cir.1976), writ denied 343 So.2d 1072 (La.1977). Making evaluations of credibility has no place in determining a summary judgment. Dixie Buick, Inc. v. Lockett, 263 So.2d 56 (La.App. 4th Cir.1972). A motion for a summary judgment is not to be used as a substitute for trial on the merits. Oller v. Sharp Elec., Inc., 451 So.2d 1235, 1237 (La.App. 4th Cir.), writ denied 457 So.2d 1194 (La.1984), appeal after remand 514 So.2d 176 (La.App. 4 Cir.1987), writ denied 519 So.2d 117 (La.1988).

Mr. Jeffers is entitled to the warranty against redhibitory vices unless expressly waived. Tuttle v. Lowrey Chevrolet, Inc., 424 So.2d 1258, 1260 (La.App. 3 Cir.1982). However, the legal warranty against latent defects may be [95-1731 La.App. 4 Cir. 5] waived or modified. LSA-C.C. art. 2503; McKneely v. Don Coleman Const. Co., Inc., 441 So.2d 497 (La.App. 2 Cir.1983).

The best explanation of the standards governing the waiver of the seller's legal warranty against hidden defects contained in LSA-C.C. art. 2476 is found in Thibodeaux v. Meaux's Auto Sales, Inc., 364 So.2d 1370, 1371 (La.App. 3 Cir.1978):

It is well established that, for a...