Amin v. Head
| Decision Date | 17 August 1982 |
| Docket Number | No. 14949,14949 |
| Citation | 419 So.2d 529 |
| Parties | Bipin R. AMIN, et ux., Plaintiffs-Appellees, v. Leon Pinkney HEAD, Jr., et ux. and James E. Townsend, et ux., Defendants-Appellants. |
| Court | Court of Appeal of Louisiana — District of US |
Dimos, Brown, Erskine & Burkett by Donald R. Brown, Monroe, for defendants-appellants.
Shotwell, Brown & Sperry by George Wear, Jr., Monroe, for plaintiffs-appellees.
Before MARVIN, JASPER E. JONES, and FRED W. JONES, Jr., JJ.
In this redhibition action, defendant subdividers of a residential subdivision appeal a judgment in favor of the purchasers of a residence and lot which was found susceptible of flooding. The judgment awarded an $8,650 reduction in the purchase price, $134 damages, and $3,500 attorney fees. Plaintiffs' answer seeks to rescind the sale and to increase the awards for expenses and attorney fees. We amend to increase attorney fees and otherwise affirm.
In six assignments, defendants contend that the trial court erred in its findings that the house was susceptible to flooding, that this susceptibility was a nonapparent defect, that damages and attorney fees were owed, and in its determination of the reduction on a "cost of cure" basis and of the expert witness fee.
We find that the record in all respects supports the trial court and does not show that the trial court has abused its discretion.
Defendants, Head and Townsend, created the subdivision in stages beginning in 1977. A natural drain existed across Lot 5 of Unit 1 of the subdivision. The subdividers altered somewhat the natural drain and provided a drainage system by using the streets in the area and constructed underground drains. In 1978, Head acquired for himself the subject lot and hired Townsend to construct a residence on the lot. Head moved into the home in January 1979. Defendants caused to be designed a 24"' underground drain in an attempt to make this lot in a cul de sac suitable for residential purposes. This drain, with one 90? and two 45? turns in it, was found to be not as efficient as a straighter drain.
A few months after Head moved into the home, a relatively heavy rain deposited large amounts of mud on his patio, carport, and driveway, and a small quantity of water on the floor of his kitchen-dining area. Head and Townsend then attempted to remedy this situation by opening a junction box in the drain and providing a grate through which ground water could drain into the system and by building on the rear of the lot a retaining wall of cross ties about two feet high. These plats show the relationship of the lot, house, and underground drain:
NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE
In November 1979 Head sold the house to the plaintiffs husband and wife without mentioning drainage or flooding problems. A few weeks later a heavy rain caused ground water to pour over the retaining wall and through plaintiffs' carport. When plaintiffs complained, Head told them they would have to keep the grate unclogged and clear of debris. In May 1980, after plaintiffs had worked several hours at 15-30 minute intervals during a rainstorm to clear the grate and had retired to bed, ground water from the continuing rain again poured over the retaining wall and seeped under the rear door of the home into the kitchen-dining area. Plaintiffs then filed this action.
Before trial of this case, defendants and the public authorities caused to be installed in a neighboring public street a catch basin designed to alleviate some of the drainage problems. Notwithstanding this effort, ground water from a heavy rain again poured over the wall and left mud and debris on the patio and carport of plaintiffs' home in October 1980. No water entered the home at this time.
Defendants' contention that the house was not susceptible of flooding is without merit because the record establishes that the house will suffer some water invasion if the grate over the junction box that defendants installed in 1979 is not frequently cleared of debris during a rainstorm.
Defendants' contention that it should have been apparent to the plaintiff husband, who is a civil engineer with a master's degree, that the lot lies in a natural drain is without merit because at the time of the sale the defendants thought they had "cured" the situation by the junction box grate and retaining wall and it is obvious the house itself is of a higher elevation than the lot. When the house was constructed, even the defendants did not then believe it or the lot was susceptible to the inconvenience of flooding, notwithstanding that they had more "knowledge" from their observation and experience than did plaintiff when he purchased from defendants.
Head is responsible for attorney fees and damages under CC 2545 because he knew of the susceptibility of flooding and failed to disclose this to the purchasers. Townsend and Head created or salvaged the lot and made it suitable for financing as a residential site by use of the particular underground drainage system. In this sense, Head and Townsend "manufactured" this low lying lot into one that was merchantable for financing as a residential site. As manufacturers they are presumed to know the defects in the thing sold and are liable for attorney fees and damages. Harris v. Bardwell, 373 So.2d 777, 782 (La.App. 3d Cir. 1979). We need not speculate as defendants suggest in brief about results in many factual situations that may arise out of our...
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Hostetler v. W. Gray & Co., Inc.
... ... Amin v. Head, 419 So.2d 529 (La.App. 2d Cir.1982), writ denied, 423 So.2d 1151 (La.1982). We note that in Amin v. Head there was arguably more of a ... ...
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425 Notre Dame, LLC v. Kolbe & Kolbe Mill Work Co.
...587 So.2d 807, 809 (La.Ct.App.1991) ; Hoste t ler v. W. Gray & Co., Inc. , 523 So.2d 1359, 1361–62 (La.Ct.App.1988) ; Amin v. Head , 419 So.2d 529, 530–32 (La.Ct.App.1982) ; Capitol City Leasing Corp. v. Hill , 394 So.2d 1264, 1268 (La.Ct.App.1981) ; Schamens v. Crow , 326 So.2d 621, 622 (L......
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Austin's of Monroe, Inc. v. Brown
... ... In this sense, the assembler or creator of the thing from component parts effectively becomes the manufacturer of the thing. Compare Amin v. Head, 419 So.2d 529 (La.App. 2d Cir.1982), writ denied. See Peterson v. Coleman Oldsmobile, Inc., 393 So.2d 372 (La.App. 1st Cir.1980), where ... ...