Truelove v. Easley

• Decision Date: 02 March 1988
• Docket Number: No. 87-110,87-110
• Citation: 521 So.2d 1229
• Parties: Lynn and Terry TRUELOVE, Plaintiffs-Appellees-Appellants, v. Marvin H. EASLEY, et al., Defendants-Appellants-Appellees, Dallas H. DeSoto, et al., Third Party Defendants-Appellees. 521 So.2d 1229
• Court: Court of Appeal of Louisiana — District of US

Page 1229

521 So.2d 1229

Lynn and Terry TRUELOVE, Plaintiffs-Appellees-Appellants, v. Marvin H. EASLEY, et al., Defendants-Appellants-Appellees Dallas H. DeSoto, et al., Third Party Defendants-Appellees.

No. 87-110.

521 So.2d 1229

Court of Appeal of Louisiana, Third Circuit.

March 2, 1988.

Rehearing Denied April 11, 1988.

Writs Denied June 2, 1988.

Bolen & Erwin, Greg Erwin, Alexandria, for plaintiffs-appellees-appellants.

Sooter & Foote, Victor Sooter, Alexandria, for defendants-appellants-appellees.

Ralph Kennedy, Alexandria, defendant-appellee.

Before GUIDRY, YELVERTON and KNOLL, JJ.

GUIDRY, Judge.

Plaintiffs, Lynn and Terry Ann Truelove, filed a suit in redhibition against Marvin H. Easley, their vendor, seeking a diminution in price and attorney's fees for the sinking and cracking of the foundation of the house at 6518 Windy Drive, Pineville, Louisiana, which the Trueloves had purchased from Easley. Easley third partied Dallas and Eula DeSoto, his vendors and the builders of the house, along with Mike Dunn, a contractor who had made extensive repairs to the house following a fire. Plaintiffs subsequently amended their petition to add the DeSotos and Dunn as defendants.

The trial judge rendered judgment in favor of the Trueloves and against defendant, Easley, ordering a reduction in price in the sum of $5,940.00, being the amount expended by plaintiffs to cure the foundation defect. The court denied plaintiffs' demand for attorney's fees and dismissed all claims against the DeSotos and Dunn. Plaintiffs appealed seeking a greater reduction in price and attorney's fees. Easley also appealed urging that the trial court erred in: (1) finding redhibitory defects as to appellant, Easley; and, (2) failing to grant him indemnity and attorney's fees against third party defendants, the DeSotos and Dunn. We amend to award plaintiffs attorney's fees and otherwise affirm.

We have carefully examined the record in this case and find that the trial court, in excellent reasons for judgment, succinctly and accurately set forth the facts and disposed of all issues presented, except as concerns plaintiffs' demand for attorney's fees. Accordingly, we are pleased to adopt, in part, the learned trial judge's reasons for judgment as our opinion on appellate review.

"In this case, plaintiffs (Truelove), alleging a redhibitory defect in their home sued their vendor (Easley) for a reduction in the purchase price. Easley, in turn, filed a third party demand against his vendor, who was also the original builder of the home, (DeSoto) and against Dunn, who had rebuilt the home for Easley after it was substantially destroyed by a fire.

"The subject home was built by DeSoto during the period late 1979--early 1980, as a speculation or 'spec-house' for sale on the open market. At that time, Mr. DeSoto had been in the business of building homes for over thirty years and had constructed over four hundred residences. He testified that his profit on the subject home was in the neighborhood of $3,000.00. On February 1, 1980, he sold to [sic] home to Easley who lived in it until it was damaged by fire on July 29, 1981. On that date Easley was in the process of building a new home which was completed before reconstruction of the damaged residence, and, accordingly, Easley did not live in the subject home after the fire. He hired Dunn, who was then building his new home, to rebuild the fire damaged house. In doing so, Dunn was able to use the slab (concrete foundation), about 60% of the exterior brick veneer walls, some plates and studs that were not damaged by fire or smoke, and the chimney of the original house.

"On June 23, 1982, Easley sold the rebuilt home to Truelove. In April of 1985, almost three years after his purchase, Truelove was hosing out his carport and noticed the water draining to the back wall instead of out the front as it had in the past. Inspection of the exterior revealed water seeping out of the back carport wall between the bricks and the concrete slab foundation. He also noticed numerous vertical cracks in the slab. He testified that he inspected the outside of his home pretty often and had never noticed the cracks before. He was aware of problems other owners in the subdivision were having with 'cracked-slabs' and consulted Mr. Philip Beard, a Civil Engineer. Mr. Beard advised him that his slab needed to be repaired. This was done by R.L. Phillips Foundations, Inc. at a cost of $5,940.00. The work was completed on May 7, 1985. Prior to doing the work, Truelove made demand on Easley for repair of the slab, which was refused.

"The Court finds as a matter of fact that the slab of Truelove's house was cracked and that the repairs performed were necessary. Whether or not the damage was caused by a redhibitory defect and whether or not the defect existed at the time of the sales from DeSoto to Easley and Easley to Truelove are the primary issues of this case.

"Louisiana law in redhibition provides for the avoidance of the sale or a reduction in the purchase price on account of some vice or defect in the thing sold that existed at the time of the sale. La.C.C. Art. 2520, 2530 and 2541. Plaintiff bears the burden of proving both the vice or defect and the fact that it existed at the time of the sale.

"In this case, there is no direct evidence of a defect in the slab or foundation of the house. There is direct evidence that a Type I slab would not be adequate for use on a soil having a Plasticity Index (P.I.) greater than a certain numerical value, but there is no evidence revealing the P.I. of the soil on which this slab was placed. There is some evidence that the slab of this house did not meet the requirements of a Type I slab, but there is no direct evidence that a slab is defective simply because it does not meet these requirements. There is direct evidence that damage occurred, but no direct evidence as to what caused it to occur.

"Nevertheless, it has long been held by our courts that proof of the existence of defects may be by direct or circumstantial evidence. It is not required that plaintiff negate all other possible causes for the damage in order to support his claim. Taken as a whole, the proof of the fact should be more probable than not. Moreno's, Inc. v. Lake Charles Catholic High School, Inc., 315 So.2d 660 (La.Sup.Ct.1975) [sic]. In this case the evidence preponderates in favor of the fact that the slab was defective at the time the damage occurred, there being no other explanation offered. And, in fact, this was the gist of the expert testimony; that the slab had to be inadequate or defective or the damage would not have occurred. Defendant has introduced no evidence to rebut this.

"Likewise, the evidence preponderates in favor of the fact that this slab was defective at the time the home was purchased by Truelove from Easley. Although almost three years elapsed from the date of sale to the date of discovery of the damage there is no evidence that the slab was in any way altered, weakened, overloaded or in any way adversely modified after this sale. Accordingly, the inference can be made that whatever defect caused the damage existed at the time of the sale. Therefore, Easley, as vendor, is liable to Truelove for the reduction sought in the purchase price. [Estopinal v. Bourshie, 420 So.2d 749 (La.App. 4th Cir.1982) ].

"Both Truelove, by amended petition, and Easley, by Third Party Demand, joined DeSoto, the original builder, as a defendant in this lawsuit. Under the jurisprudence of our state the builder of a residential structure stands in the shoes of a manufacturer, and is presumed to know the vices or defects in the things he manufacturers. [Cox v. Moore, 367 So.2d 424 (La.App. 2d Cir.1979), writ denied, 369 So.2d 1364 (La.1979) ]. Furthermore, a builder/seller is liable not only for the return or reduction in purchase price, but also, because of his presumptive knowledge of the defects, he is liable for damages and reasonable attorney's fees. La.C.C. Art. 2545. However, the fact that the builder and seller are the same person or entity does not relieve plaintiff of the burden of proving that the vice or defect existed at the time of the sale. In the case at hand, the presumption that was made that the vice or defect which caused the damage existed at the time of the sale to Truelove in 1982 cannot be made to show the existence of the defect in 1980 at the time of the sale from DeSoto to Easley. The house sold to Truelove in 1982 is not the same house purchased by Easley in 1980. There was an intervening occurrence, a fire, which in effect caused the house to be substantially rebuilt. The circumstantial evidence on which plaintiffs and third party plaintiffs necessarily rely to prove the defect existed at the time of the sale to Easley must exclude other reasonable hypotheses with a fair amount of certainty. Moreno's Inc. v. Lake Charles Catholic High Schools, Inc., (Supra).

"The evidence fails to do this. At the very least, there is disagreement among the experts as to whether or not the fire had any affect on the concrete slab itself. All agree that the fire, if intense enough, could effect the integrity of the slab. In this case, the intensity of the fire was apparently limited to the carport and adjacent kitchen area, with destruction to the remainder of the premises being secondary to water and smoke damage. Even the kitchen apparently did not receive intense heat as evidenced by the lack of fire...