Thornton v. Pedersen
| Decision Date | 13 October 1982 |
| Docket Number | No. 82-161,82-161 |
| Citation | 421 So.2d 465 |
| Parties | Carol I. THORNTON, Plaintiff-Appellee, v. Michael PEDERSEN and Deborah Pedersen, Defendants-Appellants. |
| Court | Court of Appeal of Louisiana — District of US |
C.A. Miller, Jr., Lake Charles, for defendants-appellants.
Kimball, McLeod & Dow, Robert L. Dow, Lake Charles, for plaintiff-appellee.
Collings & Collings, Robert L. Collings, Lake Charles, for defendant-appellee.
Before CULPEPPER, GUIDRY and LABORDE, JJ.
This is an action in quanti minoris for certain alleged defects in a house purchased by plaintiff, Carol I. Thorton, from defendants, Michael and Deborah Pedersen. Plaintiff sought reduction of the sale price by the amount necessary to repair the following alleged defects:
1. The roof leak and the cost of its
repair ............................. $ 500.00
2. A sinking foundation and the cost
of jacking up and releveling the
house ............................... 750.00
3. A malfunctioning septic system
and the cost of its replacement ..... 2,800.00
4. Incomplete bathroom vents, and
the cost of their extension
through the roof ...................... 300.00
5. Improper connection of drain
pipes under the house and the
cost of proper connections ............ 350.00
The plaintiff also asked for attorney's fees in the amount of $1,500.00 and damages for mental anguish in the amount of $2,500.00. Defendants denied any defects, reconvened for damages for being sued in the sum of $5,000.00 and attorney's fees in the sum of $3,500.00, and third-partied Cooley's Building Supply, Inc. and Leo Romero concerning the roof leak, the sinking foundation and the incomplete bathroom vents.
The trial court rendered judgment in favor of the plaintiff reducing the sale price by the amount of $3,432.64 which was itemized in reasons for judgment as $500.00 for the repair of the roof; $2,800.00 for replacement of the septic system; and $132.64 as proved expenses for repair to the septic system. Judgment by default was rendered in favor of defendants, third party plaintiffs, against Cooley's Building and Supply, Inc., in the amount of $500.00. Their third party claim against Leo Romero was dismissed. All other demands were denied.
Defendants appealed suspensively seeking reversal or alternatively reduction in the amount awarded plaintiff and reversal of the judgment dismissing their demands against Leo Romero. Neither plaintiff nor the third party defendant appealed or answered the appeal.
The following issues are presented by the appeal of the defendants:
(1) Did the roof leak because of a defect in construction which existed at the time of sale?
(2) Was the septic system servicing the house so defective as to entitle plaintiff to a reduction of the purchase price, and, if so, was this defect made known to the plaintiff prior to the sale?
(3) Was the award for the replacement of the septic system excessive?
(4) Is the carpenter who did the work on the roof liable to the defendants (third party plaintiffs) for the cost of repair?
The Pedersens owned a home located in Old Town Bay subdivision fronting on Old Town Road, Calcasieu Parish, Louisiana. The main part of the house is over 50 years old. They lived in the house six years and made an addition to the house after the fourth year and replaced the sewer system. The Pedersens contracted with Cooley's Building Supply, Inc. (hereafter Cooley's) for construction of the addition consisting of another bedroom, enlargement of the den and installation of a fireplace. Leo Romero did the carpentry work on the addition.
On March 27, 1978, the Pedersens sold the house to Ms. Thornton.
In August, 1978, within five months of the sale, a leak developed in the front part of the living room where the old portion of the ceiling joined the new portion. The roof continues to leak from time to time. No one contests that the roof leaks. A leaking roof is a defect such as entitles the purchaser to demand a reduction of the price. Hunter v. Wilson, 355 So.2d 39, 42 (La.App. 3rd Cir.1978) and cases cited therein.
The question is whether the leak was due to a defect in construction which existed at the time of the sale.
Appellants contend that the court erred in holding that the leak in the roof was caused by a "sink" which was a defect in construction. They contend that the evidence established that the leak was caused by the decayed condition of the roof due to the accumulation of leaves and debris on the roof, which occurred subsequent to the sale to Ms. Thornton. To support this theory, defendants rely on the opinion of two young carpenter-contractors, a Mr. Miller and a Mr. Powell. Miller and Powell inspected the roof about two weeks before trial, three years after the first leak appeared. They were unable to detect a "sink" but found an accumulation of leaves and debris in the valley and concluded that this caused rotting of the roof and explained the leaks.
On the other hand, the plaintiff's expert, the Rev. M.J. Bruney, is a carpenter-contractor with over forty years experience, who examined the roof approximately one year after the first leak appeared. He testified that he found imperfect workmanship in the construction of the roof, in that the attachment of the short and long rafters caused what he described as a "sink" and that the sheeting under the roof had not been carried straight. It was his opinion that during heavy rains and under certain wind conditions, the water would go under the shingles and flashing, and onto the felt and stay long enough to cause seepage through the roof.
In his reasons for judgment, the trial judge stated that he was impressed by the expertise and impartiality of Rev. Bruney, whereas the defendants' experts, Mr. Miller and Mr. Powell, were relatively inexperienced. Considering the time of the inspections, the expertise and the credibility of these experts, the court favored the opinion of Rev. Bruney.
The record establishes that this finding is not clearly wrong. Canter v. Koehring Company, 283 So.2d 716 (La.1973); Arceneaux v. Domingue, writ granted, 359 So.2d 1303 (La.1978), 365 So.2d 1330 (La.1978), on remand, 370 So.2d 1262 (La.App. 3rd Cir.1979); Bertrand v. Aetna Casualty and Surety Company, 306 So.2d 343 (La.App. 3rd Cir.1975). Indeed, we find that the record clearly supports the trial judge's conclusion that there was a defect in the construction of the roof which existed at the time of the sale.
Defendants assert, however, that the court erred in allowing plaintiff to establish cost of repair on redirect examination over objection of counsel. We find no merit in this contention. The record indicates that testimony establishing the cost of repairs was first made without any objection by defendants. In any event, in view of the power of the trial court over proceedings, provided in LSA-C.C.P. Articles 1631 and 1632, there was no error in the admission of this evidence on redirect examination. Wallace v. Pan American Fire & Cas. Co., 352 So.2d 1048, 1055 (La.App. 3rd Cir.1977), writs refused, 354 So.2d 209 (La.1978).
In its reasons for judgment, the trial court stated as follows:
We will affirm the trial court award for roof repairs.
In 1975, at the time that the Pedersens added on to their home, Mr. Pedersen and his brother installed a new septic system. This system consists of a 600 gallon septic tank and about 200 feet of field lines which run in an "L" shaped fashion.
Approximately one year prior to selling the house to Ms. Thornton, the Pedersens tried to sell the house to a friend who intended to use FHA financing. Among other things, FHA required that a soil percolation test be run. At the request of Mr. Pedersen, a percolation test of the soil was conducted by a sanitarian with the Calcasieu Parish Health Department. He left a copy of his report with the Pedersens indicating that there was poor absorption due to clay or inadequate drainage and that the use of field lines was unacceptable. Because of this and other reasons, the sale could not qualify for FHA financing. In spite of the above, the record reflects that the system installed by Pedersen and his brother worked well throughout the time of defendants' occupancy and was in working order at the time of the sale to Ms. Thornton.
Soon after the sale to Ms. Thornton, she experienced sluggishness with flushing of the commode and draining of water from the bathtub. In November of 1978, the commode overflowed and the contents backed up into the bathtub. A plumber had to be called. Again in January of 1979, a plumber had to be called. At this time, the system had completely broken down and a hole had to...
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...to La. Civil Code art. 2543 to "decree merely a reduction of the price." We find no abuse of that discretion. In Thornton v. Pedersen, 421 So.2d 465 (La.App. 3rd Cir.1982) the court held at The trial court has reasonable discretion to assess damages based upon the facts and circumstances of......