Opinion
DOCKET NUMBER 2023 CA 0884 DOCKET NUMBER 2023 CA 0885
04-05-2024
Jeffrey and Catherine MCDONALD, Individually, and on Behalf of Their Minor Child, Emily McDonald v. Michael D’AMICO and Patti D’Amico
Randelt E. Treadaway, Brett M. Bollinger, Jeffrey E. McDonald, Covington, Louisiana, Attorneys for Plaintiffs-Appellants, Jeffrey and Catherine McDonald, Individually and on behalf of their minor child, Emily McDonald James M. Garner, Ryan O. Luminais, Grant G. Butler, New Orleans, Louisiana and Timothy R. Richardson, Covington, Louisiana, Attorneys for Defendants-Appellees, Michael and Patti D’Amico
ON APPEAL FROM THE TWENTY-SECOND JUDICIAL DISTRICT COURT, DIVISION B, IN AND FOR THE PARISH OF ST. TAMMANY, STATE OF LOUISIANA, DOCKET NUMBER 2021-12658 c/w 2021-12660, HONORABLE AUGUST J. HAND, JUDGE PRESIDING .
Randelt E. Treadaway, Brett M. Bollinger, Jeffrey E. McDonald, Covington, Louisiana, Attorneys for Plaintiffs-Appellants, Jeffrey and Catherine McDonald, Individually and on behalf of their minor child, Emily McDonald
James M. Garner, Ryan O. Luminais, Grant G. Butler, New Orleans, Louisiana and Timothy R. Richardson, Covington, Louisiana, Attorneys for Defendants-Appellees, Michael and Patti D’Amico
BEFORE: THERIOT, PENZATO, and GREENE, JJ.
GREENE, J.
2In this appeal, the purchasers of a house challenge a summary judgment rendered against them, dismissing their redhibition claims against the sellers of the house. The purchasers also challenge the denial of their own motion for partial summary judgment, wherein they sought a judgment determining that, at the time of the sale, the sellers had knowledge of roof defects, prior water intrusion, and exterior wall defects, which they did not disclose, and that such failure to disclose was fraudulent. After de novo review, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In late October 2020, Michael and Tammi D’Amico and Jeffrey and Catherine McDonald signed a purchase agreement whereby the D’Amicos agreed to sell them 33-year-old house in Mandeville, Louisiana, to the McDonalds, in "as is" condition, for $419,900. As required by the Residential Property Disclosure Act, La. R.S. 9:3196, et seq., the D’Amicos provided the McDonalds a Property Disclosure Document wherein they disclosed that they had lived in the house for 29 years, the house had sustained "tree/roof damage" due to Hurricane Katrina in 2005, and that they had a new roof installed in 2006. The D’Amicos also disclosed a "minor garage roof leak - shingle shifted (repaired) 2017." In the Property Disclosure Document, the D’Ami- cos denied knowledge of "any defects" in the roof or walls of the house.
The October 31, 2020 purchase agreement provided the McDonalds a ten-day inspection and due diligence period, beginning on November 1, 2020. The McDonalds hired Victorian Inspection Services to perform a general inspection of the house. On November 5, 2020, Inspector Will Cullen issued an Inspection Report (the Victorian Report) pertinently flagging the house’s roof as a "Situation/Concern," and noting damaged shingles, signs of moisture damage on two areas of attic roof sheathing, and bent counter flashing. He noted that trees blocked his view of the rear roof. Mr. Cullen recommended that a qualified roofer perform a further evaluation of the roof.
The parties exchanged multiple Property Inspection Responses, wherein the McDonalds advised the D’Amicos that applicable inspections had been made, identifying certain deficiencies, including, but not limited to, "Poor Roof Conditions/Counter Flashing 3bent," and seeking repair of the noted deficiencies. On November 11, 2020, the McDonalds obtained a $13,845 quote to replace the roof. After negotiations, the McDonalds ultimately agreed to accept $12,500 in lieu of all desired repairs to the house. On December 11, 2020, the parties signed a Cash Sale, noting the sale was "AS IS" WITHOUT WARRANTIES, and that the McDonalds waived any redhibition claims under the Louisiana Civil Code.
The $12,500 negotiated amount was achieved by a reduction in the house’s purchase price and the D’Amicos’ payment of certain closing costs.
By letter dated April 14, 2021, Mr. McDonald, an attorney, informed Mr. D’Amico, a licensed real estate broker, that the house’s roof leaked in several places, and he had discovered evidence of prior leak repairs, which indicated to him that Mr. D’Amico knew of the leaks and had failed to disclose them in the pre-sale Property Disclosure Document. Mr. McDonald offered to settle the matter amicably but advised that, if not resolved within 45 days, he would file suit seeking a reduction of the sale price and for other damages. He also stated that he would file a complaint with the Louisiana Real Estate Commission.
The D’Amicos hired a realtor to represent them in the subject sale. Mr. D’Amico did not act in his capacity as a licensed real estate broker in the transaction.
Beginning in April 2021, the McDonalds had the house inspected by a roofer, a second home inspector, a mold remediator, and an engineer. These inspections revealed, among other issues, repairs and sealant application to the 2006 roof; sealant application to the house’ parapet walls and roofs counter flashing; structural repairs to an attic ridge beam and rafters; signs of prior water intrusion in interior spaces and attics; evidence of sheetrock patchwork, retexturing and repainting of water damaged areas; evidence of ongoing moisture intrusion; and signs of active leaking in the living room, kitchen, and foyer.
On June 15, 2021, Mr. and Mrs. McDonald, individually and on behalf of their minor child, filed a petition against Mr. and Mrs. D’Amico asserting claims for redhibitory relief and rescission, or alternatively for damages. The McDonalds also filed a petition for injunctive relief against the D’Amicos, which the trial court consolidated with the redhibition suit. Further, Mr. McDonald filed a complaint against Mr. D’Amico with the 4Louisiana Real Es- tate Commission. The D’Amicos answered the suit, filed affirmative defenses, and filed a reconventional demand against the McDonalds, asserting claims for abuse of process and unfair trade practices.
In a judgment dated October 8, 2021, the trial court denied the McDonalds’ petition for injunctive relief, which is not at issue in this appeal.
In June of 2021, the McDonalds had the house’s roof replaced. However, in an affidavit dated June 17, 2022, Mr. McDonald attested that, despite the new roof and other repairs, they were still experiencing leaks at the right parapet wall.
After the litigation began, the parties conducted discovery and filed multiple exceptions and motions. The trial court also allowed the McDonalds to file a supplemental and amending petition, wherein they stated their claims as bad faith failure to disclose and/or breach of statutory duty, fraud and/or intentional misrepresentation, reckless disregard, gross negligence, and/or ordinary negligence, breach of professional duty, negligent misrepresentation and detrimental reliance," redhibition, rescission for error of cause, unfair trade practices, and damages.
Relevant here: (1) on July 15, 2022, the McDonalds filed a motion for partial summary judgment, seeking a judgment determining that, at the time of the sale, the D’Amicos knew of roof defects, prior water intrusion into the house, and exterior wall defects, and their failure to disclose such prior to the sale was fraudulent; (2) on August 15, 2022, the D’Amicos filed a motion for summary judgment seeking dismissal of all of the McDonalds’ claims; (3) on August 26, 2022, the McDonalds filed an opposition to the D’Amicos’ motion; and (4) on September 1, 2022, the D’Amicos filed an opposition to the McDonalds’ motion.
After a hearing on the cross motions, the trial court signed a judgment on October 25, 2022, granting the D’Amicos’ motion for summary judgment, denying the McDonalds’ motion for partial summary judgment, dismissing all of the McDonalds’ claims against the D’Amicos, and denying as moot the McDonalds' objections to the timeliness of the D’Amicos’ opposition to the McDonalds’ motion. In reasons for judgment signed on October 5, 2022, the trial court concluded that the D’Amicos’ disclosures in the Property Disclosure Document, together with the Victorian Report recommendations, were 5sufficient to put the McDonalds on notice to perform further due diligence regarding suspected defects, and the McDonalds failed to do so. According to the trial court, the facts were "clear that the McDonalds had pre-sale knowledge of defects in the home," they signed two specific waivers of any warranty, and bought the house "as is." Further, finding Mr. D’Amico was not acting in his capacity as a realtor when selling the house, the trial court also rejected the McDonalds’ claim that Mr. D’Amico breached a professional duty to them.
The October 25, 2022 judgment also granted the McDonalds’ motion for summary judgment on the D’Amicos’ reconventional demand and dismissed all reconventional claims asserted by the D’Amicos with prejudice. The McDonalds do not challenge this ruling of the judgment on appeal.
The McDonalds added a claim for breach of professional duty against Mr. D’Amico in their amended and supplemental petition filed on February 3, 2022. The McDonalds do not challenge this ruling of the judgment on appeal.
ASSIGNMENTS OF ERROR
The McDonalds appeal from the adverse judgment contending the trial court erred in: granting the D’Amicos’ motion for summary judgment; denying their motion for palliai summary judgment; finding their objections to the D’Amicos’ opposition to be moot; and, considering the affidavit of John Barry, which the D’Amicos filed in opposition to the McDonalds’ motion and to which the McDonalds objected.
Although the Legislature recently amended La. C.C.P. art. 966, which governs summary judgments, the relevant amendment is not applicable to the instant appeal. See 2023 La. Acts No. 317, § 1 (eff. Aug. 1, 2023) and 2023 La. Acts No. 368, § 1 (eff. Aug. 1, 2023); Ricketson v. McKenzie, 2023-0314 (La. App. 1 Cir. 10/4/23), 380 So.3d 1, 8–11 (concluding 2023 La. Acts No. 317, § 1 was a substantive amendment and could not be retroactively applied). Accordingly, we will apply the version of La. C.C.P. art. 966 in effect on September 22, 2022, the date of the summary judgment hearing herein. Id.
[1] An appellate court reviews the grant or denial of summary judgment de novo under the same criteria governing the trial court’s consideration of whether summary judgment is appropriate. Jefferson v. Nichols State University, 19-1137 (La. App. 1 Cir. 5/11/20), 311 So.3d 1083, 1085, writ denied, 20-00779 (La. 11/4/20), 303 So.3d 623. A court shall grant summary judgment if the pleadings, memorandum, and admissible supporting documents show there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law. See La. C.C.P. art. 966(A)(3) and (4). The summary judgment procedure is favored and shall be construed to secure the just, speedy, and inexpensive determination of every action. See La. C.C.P. art. 966(A)(2). Where there are cross motions for summary judgment raising the same issues, this Court can review 6the denial of a summary judgment in addressing the appeal of the grant of a cross motion for summary judgment. Rover Group, Inc. v. Clark, 2021-1365 (La. App. 1 Cir. 4/8/22), 341 So.3d 842, 847. Herein, the parties’ cross motions for summary judgment raise the same basic issue - that is, whether the D’Amicos fraudulently failed to disclose defects in the house, thereby rendering the McDonalds’ waiver of the warranty against redhibitory defects invalid. Thus, this Court will review the denial of the McDonalds’ motion for partial summary judgment in addressing their appeal of the grant of the D’Amicos’ motion for summary judgment. In determining what summary judgment evidence is properly before us on appeal, we first address a procedural issue raised by the McDonalds.
[2] It is undisputed that, on September 1, 2022, the D’Amicos timely filed their opposition and supporting documents to the McDonalds’ motion for partial summary judgment into the record herein, but they did not timely serve all of their supporting documents upon the McDonalds. In a reply memorandum in support of their motion, the McDonalds objected to the trial court’s consideration of the D’Amicos’ untimely-served exhibits. In the October 25, 2022 judgment, the trial court denied the McDonalds’ objections as moot. The McDonalds contend the trial court erred in doing so.
Louisiana Code of Civil Procedure article 966(B)(2), as applicable herein, requires that any opposition to a motion for summary judgment and all supporting documents "shall be filed and served" not less than 15 days prior to the hearing on the motion. In Auricchio v. Harriston, 2020-01167 (La. 10/10/21), 332 So.3d 660, the Louisiana Supreme Court addressed whether a trial court had discretion to consider a late-filed opposition and ultimately concluded that it did not. The Auricchio Court, 332 So.3d at 663, held the Legislature’s use of "shall be filed" in La. C.C.P. art. 966(B)(2) meant that filing deadlines were mandatory and thus the trial court did not have discretion to con- sider a late-filed opposition. Accord Kinsley v. Baton Rouge General Medical Center, 2022-1255 (La. App. 1 Cir. 6/2/23), 369 So.3d 881, 885.
[3] We apply the same reasoning to La. C.C.P. art. 966(B)(2)’s "shall be served" requirement. That is, because the D’Amicos did not timely serve some of the documents supporting their opposition upon the McDonalds, the trial court could not consider those documents that were untimely served. We note the D’Amicos’ argument that the 7untimely-served opposition evidence is in the record, pointing out that it is the same evidence they filed in support of their own motion for summary judgment. However, under the applicable version of La. C.C.P. art. 966(D)(2), this Court may only consider those documents filed in support of or in opposition to the motion for summary judgment, even if those documents appear elsewhere in the record. See Troncoso v. Point. Carr Homeowners Association, 2022-0530 (La. App. 1 Cir. 1/10/23), 360 So.3d 901, 915. And, La. C.C.P art. 966(B)(2) mandates compliance without regard to cause or prejudice. See Auricchio, 332 So.3d at 663; Kinsley, 369 So.3d at 885. Thus, on our de novo review of the trial court’s judgment, we will consider only the admissible summary judgment evidence, consisting of: the evidence timely filed and served by the parties in support of their own motions for summary judgment and the evidence timely filed and served by the parties in opposition to the others’ respective motion. We now turn to the merits of the appeal.
We note that under recent amendments to the summary judgment law, documents elsewhere in the record may be referenced in support of or in opposition to a motion for summary judgment. See La. C.C.P. art. 966(A)(4), as amended by 2023 La. Acts No. 317,§ 1.
Our review includes consideration of John Barry’s affidavit, which the D'Amicos timely filed and served in opposition to the McDonalds’ motion for partial summary judgment and to which the McDonalds timely objected. Contrary to the McDonalds’ argument, we conclude Mr. Barry’s affidavit complies with the requirements of La. C.C.P. art. 967(A). See Hebert v. State Farm Fire and Casualty Company, 2021-010 (La. App. 3 Cir. 8/4/21), 325 So.3d 1090, 1095, writ denied, 2021-01358 (La. 11/17/21), 327 So.3d 992.
The McDonalds’ assignments of error and arguments on the merits of the appeal are limited to issues of redhibition, bad faith, and the validity of their waiver under the RPDA; on appeal, they do not address the elements of other causes of action asserted in their amended and supplemental petition.
Redhibition and the Residential Property Disclosure Act
Under La. C.C. art. 2520, the seller warrants the buyer against redhibitory defects in the thing sold. A defect is redhibitory when the defect renders the thing useless, or its use so inconvenient that it must be presumed that a buyer would not have bought it had he known of the defect. Id. The existence of such a defect gives a buyer the right to obtain rescission of the sale. Id. A defect is also redhibitory 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. Id. The existence of such a defect limits the right of a buyer to a reduction of the price. Id.
8Under La. C.C. art. 2521, however, a seller owes no warranty for defects that were known to the buyer at the time of the sale or for defects that a reasonably prudent buyer should have discovered. Further, under La. C.C. art 2548, a seller and buyer may agree to an exclusion or limitation of the warranty against redhibitory defects. The terms of the exclusion or limi- tation must be clear and unambiguous and must be brought to the attention of the buyer. Id.
[4–6] The seller bears the burden of proving the buyer has waived the warranty against redhibitory defects, Minton v. Acosta, 2021-1180 (La. App. 1 Cir. 6/3/22), 343 So.3d 721, 727. A waiver of warranty against redhibitory defects is strictly construed against the seller. Id. And, under La. C.C. art. 2548, even when the parties agree to an exclusion or limitation of the warranty against redhibitory defects, such is not binding in circumstances where the seller has declared that the thing has a quality that he knew it did not have. Stated differently, a seller who knows of a redhibitory defect, fails to disclose it, and instead obtains the buyer’s waiver against redhibitory defects, commits fraud; and, such fraud invalidates the waiver, See Shelton v. Standard/700 Associates, 2001-0587 (La. 10/16/01), 798 So.2d 60, 64; Chmielewski v. Sowell, 55,317 (La. App. 2 Cir. 11/15/23), 374 So.3d 404, 416; Minton, 343 So.3d at 726-27; Boos v. Benson Jeep-Eagle Company, Inc., 1998-1424 (La. App. 4 Cir. 6/24/98), 717 So.2d 661, 665.
In addition to the above Civil Code principles regarding redhibition, the Residential Property Disclosure Act, La. R.S. 9:3196, et seq. (RPDA), requires a seller of residential property to complete and deliver a property disclosure document (in a form prescribed by the Louisiana Real Estate Commission) to the buyer which discloses, at a minimum, "known defects" in the residential real property. La. R.S. 9:3196(2). A "known defect" is a condition known to the seller that has a substantial adverse effect on the property’s value, significantly impairs the health or safety of the property’s future occupants, or significantly shortens the property’s expected normal life, if not corrected. See La. R.S. 9:3196(1). The seller shall complete the property disclosure document in good faith to the best of his belief and knowledge as of the date he completes and signs it. La. R.S. 9:3198(B)(1). However, a property disclosure document shall not constitute a warranty by the seller. See La. R.S. 9:3198(D)(1). The information contained therein is for 9disclosure purposes only and is not intended to be a part of any contract between the seller and buyer. Id. The property disclosure document may not be used as a substitute for any inspections or warranties that the seller or buyer may obtain, and the RPDA does not preclude the buyer’s rights or duties to inspect the physical condition of the property. La. R.S. 9:3198(D)(2).
[7] A seller shall not be liable for any error, inaccuracy, or omission of information required in the property disclosure document, if the error, inaccuracy, or omission was not a willful misrepresentation according to the best of the seller’s information, knowledge, and belief. La. R.S. 9:3198(E)(1); Murray v. Bostwick, 52,802 (La. App. 2 Cir. 8/14/19), 276 So.3d 1120, 1125. However, a seller who makes a willful misrepresentation in a property disclosure document can be found liable for fraud. See Stutts v. Melton, 2013-0557 (La. 10/15/13), 130 So.3d 808, 813 (interpreting La. R.S. 9:3200, which provides that the RPDA "shall not limit or modify any obligation between buyers and sellers created by any other statute or that may exist in law.")
For an overview of the RPDA. see 1 La. Prac. Real Est. § 9.5, Contract to sell – Formation of the contract - Residential Property Disclosure (2d ed. Nov. 2023 update).
The D’Amicos contend the trial court properly granted summary judgment dismissing the McDonalds’ claims, because the D’Amicos disclosed Hurricane Katrina-related tree/roof and prior water damage to the McDonalds before the sale, the McDonalds asked no questions about the Hurricane Katrina damages, ignored their own inspector’s recommendation to further investigate suspected roof damage, chose not to timely make the recommended roof repairs, and signed two waivers of their redhibition claims.
Summary Judgment Evidence
In support of their motion, the D’Amicos filed Mr. D'Amico’s affidavit to which several exhibits were attached. In his affidavit, Mr. D’Amico identified the Property Disclosure Document and stated that he completed the document "to the best of [his] knowledge, information, and belief." In the Property Disclosure Document, the 10D’Amicos denied that there were any defects in the house’s roof and exterior walls. And, they answered as follows when asked if there had been property damage during the time they owned the house:
The D’Amicos also filed Mrs. D’Amico’s affidavit in support of their motion; her affidavit was consistent with Mr. D’Amico’s affidavit.
385 So.3d 1169.bmp
It is undisputed that the McDonalds did not ask the D'Amicos questions about or request photographs showing the extent of the Hurricane Katrina-related damage.
The D'Amicos also filed a copy of the pre-sale Victorian Report, which described the poor roof conditions, noted that parts of the rear roof were not clearly visible due to tree branches and that "there may be potential issues present on this roof." The report included photographs depicting the exact areas of the roof and attic spaces described.
The Victorian Report noted that Mr. Cullen inspected the house's roof with binoculars while standing on the ground and viewed the front roof from the top of a ladder.
In his affidavit, Mr. D’Amico also attested that, after the Victorian Report was issued, the parties exchanged multiple Property Inspection Responses, copies of which were attached to his affidavit. As earlier noted, in those Property Inspection Responses, the McDonalds advised that applicable inspections had been made; listed multiple deficiencies in the house, including, but not limited to "Poor Roof Conditions, Counter flashing bent"; and requested that the D’Amicos repair the deficiencies, including replacement of the roof by a licensed and insured roof contractor. The Property Inspection Responses show that, after negotiations, the parties agreed that, in lieu of all desired repairs to the house, the McDonalds would receive $12,500.
The D’Amicos also filed the parties’ December 11, 2020 Cash Sale, which reflected the $12,500 reduction, and wherein the parties specifically acknowledged, as shown below, that the property was being sold in "as is" condition and that the McDonalds waived all redhibition claims under the Civil Code:
11 NOTE: SALE "AS IS" WITHOUT WARRANTIES: SELLER(S) and BUYER(S) hereby acknowledge and recognize that the Property being sold and purchased is to be transferred in "as is" condition and further BUYER(S) does hereby waive, relieve and release SELLER(S) from any claims or causes of action for redhibition pursuant to Louisiana Civil Code Article 2520, et seq. and Article 2541, et seq. or for reduction of Sales Price pursuant to Louisiana Civil Code Article 2541, et seq. Additionally, BUYER acknowledges that this sale is made without warranty of fitness for ordinary or particular use pursuant to Louisiana Civil Code Article 2524. SELLER(S) and BUYER(S) acknowledge that they have read the above and sought their own legal counsel and they hereby release and relieve Allegiance Title & Land Services, L.L.C. and/or Notary Public from any and all liability in connection therewith.
385 So.3d 1170.bmp
In support of their motion, the D’Amicos also attached the deposition excerpt of Laura Brown, the six-year realtor who represented the D’Amicos in the sale. Ms. Brown testified that, during her showings of the house, she saw nothing inconsistent with what the D’Amicos disclosed on the Property Disclosure Document. Based on her conversations with the D’Amicos, Ms. Brown also testified nothing led her to believe that the D’Amicos made willful misrepresentations in the Property Disclosure Document. Ms. Brown basically opined that, if a buyer wants clarification about a statement made in a Property Disclosure Document, it is the buyer’s obligation to ask the sellers for more information.
Finally, in opposition to the McDonalds’ motion, the D’Amicos filed the affidavit of John Barry, a twenty-year licensed residential contractor with experience in residential and commercial construction. Mr. Barry attested that he was familiar with the installation of residential roofing systems, including those designed with parapet walls similar to those on the subject house. Mr. Barry also attested that he reviewed the Victorian Report, the McDonalds’ first Property Inspection Response, and inspected the house three times in 2021. Mr. Barry opined that the McDonalds should have replaced the roofing system immediately after buying the house and, had they timely and properly done so, they would not have later experienced leaks. Mr. Barry explained that a knowledgeable, experienced, and reputable roofing contractor would have evaluated the entire roofing system, including parapet walls extending above the roof line, to ensure that water intrusion would not occur.
In opposition to the D’Amicos’ motion for summary judgment, the McDonalds essentially contend the D’Amicos knew of defects to the house’s roof and an exterior wall which required much more disclosure than merely a reference to Katrina-related 12"tree/roof damage" and a "minor garage leak - shingle shifted (repaired) 2017." In support of their opposition, the McDonalds filed numerous exhibits that they contend show genuine issues of material fact as to the reasonableness of their failure to obtain further inspections before the sale, the extent of the undisclosed defects, and the D’Amicos’ apparent knowledge thereof. Regarding the McDonalds’ follow-up to the Victorian Report, the McDonalds filed excerpts from Mr. McDonald’s deposition, wherein he acknowledged the Victorian Report’s recommendation to have the house’s roof further inspected based on the damaged shingles and signs of moisture damage in the attics. According to Mr. McDonald, his realtor had a second roof inspection performed by Pelican Roofing and he obtained a quote from Pelican Roofing to replace the roof. Regarding the moisture stains and damage noted in the Victorian Report, the summary judgment evidence shows that, a few days after the report was issued, Mrs. McDonald asked about the D’Amicos’ knowledge of "prior roof leaking" other than at the garage, and Mrs. D’Amico’s answer was, "Not clear of the noted roof issues in the report. The garage was disclosed." In his deposition testimony, Mr. McDonald testified that, based on the D’Amicos’ above disclosures, and trusting that a real estate professional (Mr. D’Amico) "would not commit fraud," he was satisfied that the D’Amicos had no knowledge of prior roof leaks, a defective exterior wall, or structural defects to the roof.
The McDonalds' summary judgment evidence also included documentation that, in 2017, Allstate Insurance Company denied the D’Amicos’ claim for hail damage, because All-state’s investigation revealed that damage to the roof was a "result of improper installation and not storm related." At his deposition, Mr. D'Amico remembered that Allstate denied his hail damage claim but had no recollection of receiving the denial letter. Without further evidence, we reject the McDonalds' contention that the Allstate documentation creates a disputed factual issue that Mr. D'Amico knew and should have disclosed that the roof was improperly installed.
In their opposition to the D’Amicos’ motion, the McDonalds "adopt[ed], include[d], and incorporate[d] by reference all of the facts, argument, legal citation, and evidence contained in and attached to" their own July 15, 2022 motion for summary judgment. Under applicable summary judgment law, this "adoption" alone would have been insufficient to properly oppose the D’Amicos’ motion. See Troncoso, 360 So.3d at 915. However, because the McDonalds also filed the "adopted" July 15, 2022 motion and all evidence attached thereto with their opposition, we consider such in our review.
Regarding the extent of alleged undisclosed defects, the McDonalds filed Mr. D’Amico’s deposition excerpt wherein he acknowledged that Hurricane Katrina-related damage to the house included damage to the roof, a ridge beam in the attic, an exterior brick parapet wall, interior flooring, and interior sheetrock. He testified that the entire 13roof was replaced in 2006 and the other damage was repaired. Other than an upgrade to the house’s "cricket," and the disclosed 2017 garage roof repair, Mr. D’Amico denied having other roof work performed or performing such himself after the 2006 repairs.
Additionally, the McDonalds filed, among other evidence, the affidavits of several persons who inspected the house, notably, after the sale was completed.
The McDonalds filed the affidavit of Charles Carmack, a professional roofer, who attested that he inspected the house’s roof on April 16, 2021, and observed: multiple areas of water intrusion; evidence of differing shingle age indicative of repair later than 2006; prior application of sealant to gaps in improperly laid shingles; and improperly layered sections of flashing. In reference to his repair of several areas of the roof, Mr. Carmack opined that the attempted repairs did not appear to have been professionally done. Mr. Carmack attached photographs to his affidavit depicting the described areas.
The McDonalds also filed the affidavit of Michael Gurtler, a professional home inspector who inspected the house on April 22 and May 12, 2021. Mr. Gurtler attested that his exterior inspection showed, among other things, the application of sealant or water-proofing material to the house’s parapet walls and the roofs counter flashing and apparent repair to roof counter flash- ing that joined a lower roof with the right-side parapet wall. His interior inspection showed, among other things, numerous signs of prior water intrusion in living spaces and in attic areas and numerous areas of sheetrock patching of prior water damage, some of which were presently holding water. Mr. Gurtler also attested that thermal imaging recorded during his inspections confirmed multiple areas of moisture in interior spaces. Based on his inspections, Mr. Gurtler pertinently opined, that: based on the nature and source of the water intrusion, it was more likely than not that the house had "sustained regular, repeated, and ongoing water intrusion for a significant period of time," but which had only shown up in the house’s interior during heavier periods of rain; and the moisture observed in the house’s garage was not consistent with a "minor" roof leak caused by a "shifted shingle."
The McDonalds also filed the affidavit of Lloyd Tournet, a mold inspector who inspected the house on May 11, 2021. Generally, his observations were consistent with those of Mr. Gurtler.
14The McDonalds also filed the affidavit of Friedrich Gurtler, an engineer and home inspector who performed an inspection of the house in October of 2021. Among other conclusions, Mr. Gurtler opined that the improperly repaired ridge beam and rafters and the defectively-designed right-side parapet wall were structural defects that existed at the time of the sale, would not have been readily observable upon simple inspection, and, more probably than not, led to water intrusion into the house.
The McDonalds also filed the affidavit of Jared Bordelon, a forensics engineer, who the McDonalds hired to determine the proximate cause and age of various defects in the house. Mr. Bordelon inspected the house multiple times after the sale. In a May 25, 2022 affidavit, he noted some of the same exterior and interior damage noted by Michael and Friedrich Gurtler. He opined that, based on the forensic physical evidence, the drywall damage caused by water infiltration in the house’s breakfast area and in the foyer originated before the McDonalds bought the house, and it was "more probable than not" that the prior owners knew of the conditions and were responsible for the prior cosmetic repairs of these areas. He also opined that the forensic evidence revealed that structural repairs associated with the tree damage during Hurricane Katrina included replacement of rafters, a portion of the ridge beam, and roof sheathing.
The McDonalds also filed the affidavits of neighbors who lived near the D’Amicos before they sold the house to the McDonalds. Each of the neighbors, who had lived near the D’Amicos anywhere from two to ten years before they sold the house, attested that they had seen Mr. D’Amico on the house’s roof on multiple occasions after rain events.
Lastly, the McDonalds filed the affidavits of two licensed real estate professionals, both who attested to being familiar with residential property disclosure requirements. Chris Donaldson, a licensed real estate broker and fifteen-year continuing education instructor, attested that he had reviewed relevant documents regarding the D’Amicos’ disclosures and the house’s condition. Based on that review and his experience in the real estate field, he opined, among other things, that the D’Amicos should have disclosed: damage to, repair of, and recommended maintenance of exterior brick walls; damage to the structural members of the house; damage to interior sheetrock and flooring; and, all 15instances of water intrusion. Mr. Donaldson also opined that a real estate licensee knows or should know to make such disclosures.
Theresa Rowe, the eighteen-year realtor who represented the McDonalds in the subject sale, opined in her affidavit that a disclosure of "installed new roof" is insufficient to put a buyer on notice of structural damage to ridge beams and rafters or of repairs to interior living areas caused by water intrusion. She also opined that she would have advised a seller to specifically disclose that the Hurricane Katrina roof damage to the house required floor replacement.
Analysis after De Novo Review
[8] After our de novo review of the summary judgment evidence, we conclude the trial court correctly granted summary judgment in favor of the D’Amicos in this case. As earlier stated, under La. C.C. art. 2521, a seller owes no warranty for defects that were known to the buyer at the time of the sale or for defects that a reasonably prudent buyer should have discovered. Further, under the RPDA, a Property Disclosure Document shall not constitute a warranty by the seller and information contained therein is for disclosure purposes only. La. R.S. 9:3198(D)(1). In the Property Disclosure Document, the D’Amicos disclosed Hurricane Katrina-related "tree/roof damage" and that a new roof had been installed on the house. They also disclosed a "minor garage roof leak" that had been repaired in 2017.
The Victorian Report expressly noted the house’s roof condition was a concern warranting further evaluation by a qualified roofer. The Victorian Report specifically pointed out shingle damage, counter flashing concerns, two areas of moisture damage in the attic, and rear roof areas that could not be seen and might present "potential issues." After receiving the Victorian Report, the McDonalds did not ask the D’Amicos questions about the extent of the Hurricane Katrina-related damage or the scope of the repairs necessitated by that damage. The damage to the ridge beam could have been discovered by visual inspection by going in the attic. Although Mrs. McDonald did ask a single question about the D’Amicos knowledge of leaks other than at the garage roof, we find Mrs. D’Amico’s admittedly unclear response to that question did not excuse the McDonalds from having a qualified roofer thoroughly inspect the roof - including all of its 16exterior and interior structural components, as well as investigation into the source of the disclosed moisture damage. Accord Vanek v. Seeber, 2009-0066 (La. App. 1 Cir. 10/27/09), 29 So.3d 582, 588 (concluding roof defect was not redhibitory because, armed with knowledge of roof condition from first inspection, buyer could have hired a second roof inspector to determine the full extent of the roof problems). Such further inspection before the sale would have led to discovery of the alleged defects the McDonalds waited until after the sale to find. See Louapre v. Booher, 2016-0236 (La. App. 4 Cir. 8/31/16), 216 So.3d 1044, 1054. The McDonalds’ evidence does not explain why any defect admitted to by the D’Amicos after the sale, or discovered by Mr. Carmack, both Mr. Gurtlers, or Mr. Bordelon after the sale, could not have been discovered by proper inspections conducted during the ten-day inspection period before the sale. Nota- bly, most of the post-sale inspections were visual inspections that could have been performed during that period. Buyers cannot use their alleged reliance on a property disclosure document as an excuse for failing to obtain a comprehensive home inspection or failing to follow the advice of the inspector to obtain more extensive inspections. Williams v. Nelson, 18-207 (La. App. 5 Cir. 12/19/18), 263 So.3d 466, 474; see also Vanek, 29 So.3d at 588; Louapre, 216 So.3d at 1054.
In his affidavit, Mr. Bordelon attested that multiple areas of previous repairs and the defective repair of the ridge beam would not have caught the attention of an "untrained eye" upon simple inspection. And, in his affidavit, Mr. Friedrich Gurtler similarly attested that certain defects would not have been readily visible upon "simple inspection." Notably, these attestations do not create a disputed factual issue as to whether a subsequent inspector with a "trained eye" would have discovered these issues had the McDonalds obtained a thorough inspection before the sale.
In sum, we conclude that the admissible summary judgment evidence shows that, under La. C.C. art. 2521 and La. R.S. 9:3198(D), the D’Amicos owed no warranty to the McDonalds for defects they disclosed prior to the sale nor for defects that the McDonalds, as reasonably prudent buyers, should have discovered. Based on the disclosures made by the D’Amicos, along with the Victorian Report recommendations, we find there are no genuine issues of material fact that the McDonalds knew or should have known the house’s roof condition warranted further inquiry and that a reasonably prudent buyer would have discovered the defects of which the McDonalds now complain. After being expressly advised to inspect further, the McDonalds should have discovered the extent of 17house’s exterior and interior damage caused by the disclosed damage. They did not. Instead, the McDonalds accepted a reduced purchase price. Thus, the D’Amicos did not fraudulently fail to disclose known defects, and, under La. C.C. art. 2548 and La. R.S. 9:3198, the McDonalds’ waiver of redhibitory defects was valid.
CONCLUSION
For the foregoing reasons, we affirm the October 25, 2022 judgment insofar as it: (1) granted the motion for summary judgment filed by Michael and Patti D’Amico, dismissing all claims filed by Jeffrey and Catherine McDonald, and (2) denied the motion for partial summary judgment filed by Jeffrey and Catherine McDonald. We assess costs of the appeal to Jeffrey and Catherine McDonald.
AFFIRMED.
Penzato, J. agrees in part and dissents in part with reasons.
PENZATO, J., dissenting in part,
1I respectfully disagree with the majority and would reverse the portion of the trial court’s judgment that granted the D’Amicos’ motion for summary judgment. I find genuine issues of material fact remain; therefore, the D’Amicos are not entitled to summary judgment as a matter of law. See La. C.C.P. art. 966. Due to the existence of genuine issues of material fact, I agree with the majority that the trial court properly denied the McDonalds’ motion for partial summary judgment and agree to affirm this portion of the judgment. This matter should proceed to trial on the merits.
Under the facts of this case, whether the McDonalds acted as reasonably prudent buyers in response to the pre-purchase Victorian Report is an issue that cannot properly be determined on summary judgment. See Baldwin v. Board of Supervisors for University of Louisiana Systems, 2006-0961 (La. App. 1st Cir. 5/4/07), 961 So.2d 418, 422 (issues that require the determination of reasonableness 2of acts and conduct of parties under all facts and circumstances of the case cannot ordinarily be disposed of by summary judgment). I also find genuine issues of material fact concerning whether the D’Amicos’ prepurchase disclosures were sufficient to put a reasonably prudent buyer on notice, particularly regarding the damage to the home’s exterior wall and structural components, interior walls, and widespread moisture intrusion. See La. C.C. art. 2521. Notably, there were no specific findings or recommendations in the Victorian Report concerning these issues.
Finally, genuine issues of material fact remain concerning the D’Amicos’ pre-sale knowledge of undisclosed damages and defects in the property, which will require credibility determinations that cannot be made on summary judgment. See La. C.C. art. 2545; White v. Herbert, 2022-1333 (La. App. 1st Cir. 6/2/23), 369 So.3d 898, 904 (In reviewing a motion for summary judgment, courts cannot make credibility determinations, evaluate testimony, or weigh conflicting evidence.).