Opinion
2021 CA 1180
06-03-2022
Coby Shawn MINTON and Caitlyn Bourgeois Minton v. Jody Daniel ACOSTA and Keith Michael Daigle
Gary Williams, Jr., Houma, LA, Counsel for Plaintiffs/Appellees, Coby Shawn Minton and Caitlyn, Bourgeois Minton Ramon J. Fonseca, Jr., Lafayette, LA, Counsel for Defendants/Appellants, Jody Daniel Acosta and Keith Michael Daigle
Gary Williams, Jr., Houma, LA, Counsel for Plaintiffs/Appellees, Coby Shawn Minton and Caitlyn, Bourgeois Minton
Ramon J. Fonseca, Jr., Lafayette, LA, Counsel for Defendants/Appellants, Jody Daniel Acosta and Keith Michael Daigle
BEFORE: McCLENDON, WELCH, AND THERIOT, JJ.
McClendon, J
Following trial on the merits, the trial court found that a redhibitory defect existed, that the defendants knew or should have known of the defect, and that the defendants failed to disclose the defect. Accordingly, the trial court rendered judgment in favor of the plaintiffs and ordered a reduction of the purchase price. The defendants were cast in judgment for the costs of repair, other related expenses, and attorney's fees. Defendants have appealed, arguing that plaintiffs waived any claims of redhibition pursuant to the terms of the sale. For the reasons that follow, we affirm.
FACTS AND PROCEDURAL HISTORY
The plaintiffs, Coby Shawn Minton and Caitlyn Bourgeois Minton, purchased a home in St. Mary Parish from the defendants, Jody Daniel Acosta and Keith Michael Daigle, on March 29, 2019. The cash deed contained a clause that provided that the sale was "as is," that the Mintons waived and released any claims of redhibition or for the reduction of purchase price, and that the sale was made without warranty of fitness for ordinary or particular use (waiver clause).
Prior to the execution of the cash deed, the parties also executed an agreement to buy or sell that contained a similar clause. However, the Civil Code articles dealing with redhibition do not apply to contracts to sell. Williston v. Noland, 2003-2590 (La.App. 1 Cir. 10/29/04), 888 So.2d 950, 953, writ denied, 2005-0084 (La. 4/22/05), 899 So.2d 572, citing Amend v. McCabe, 95-0316 (La. 12/1/95), 664 So.2d 1183, 1188, n.6 (on rehearing).
On October 1, 2019, the Mintons filed suit against Mr. Acosta and Mr. Daigle, seeking reduction of the purchase price based on the existence of undisclosed redhibitory defects. The Mintons alleged that the defendants improperly installed the flooring and sub-flooring in the home, which resulted in significant problems and necessitated repairs. The Mintons further alleged that the waiver clause did not apply to bar their claims, because the defendants personally installed the flooring, and because the defendants intentionally concealed and/or failed to reveal the defects. Thus, the Mintons sought damages for misrepresentation and defects, inconvenience, repair expenses, loss of use, reduction of the sale price, and reasonable attorney's fees.
The defendants answered the Mintons' petition and generally denied liability on October 29, 2019. Subsequently, the defendants filed a motion seeking summary judgment and dismissal of the Mintons' claims. The defendants argued that the Mintons waived all warranties pursuant to the waiver clause in the cash deed, and therefore were precluded from asserting any claims of redhibitory defects. The motion for summary judgment was denied after a hearing on June 2, 2020.
Trial on the merits was held on April 20, 2021. The trial court found that there was a redhibitory defect in the flooring; that the defendants knew or should have known there was an issue with the flooring; that the defendants cut a bump out of the floor and replaced it with plywood; and, that the defendants failed to properly disclose the issue with the flooring and the previous repair. Accordingly, the trial court ordered a reduction of the sale price of the home in the amount of $33,615.14, representing the cost of the repairs made. The trial court further awarded the Mintons damages in the amounts of $495.00, representing the cost of the flooring inspection; $100.00 , representing storage fees; and judicial interest from the date of judicial demand. The trial court also ordered the defendants to pay the Mintons' attorney's fees in the amount of $3,500.00. The trial court executed a written judgment in conformity with these oral rulings, and the defendants have appealed.
The judgment and court minutes reflect a $100.00 award for storage costs, while the written reasons reflect a $180.00 award for storage costs, consistent with the receipt offered into evidence. A trial court's written reasons for judgment form no part of the judgment itself. Where there is a conflict between the judgment and the written reasons, the judgment controls. Johnson v. Henry, 2016-0271 (La.App. 1 Cir. 10/31/16), 206 So.3d 916, 918, n.1.
The trial court originally executed a written judgment documenting its rulings on May 3, 2021. Defendants appealed. This Court, ex proprio motu, issued a rule to show cause on November 5, 2021, which noted that the May 3, 2021 judgment appeared to be ambiguous and directed the parties to show cause by briefs why the appeal should or should not be dismissed. The trial court executed an amended judgment on February 3, 2022. See LSA-C.C.P. arts. 1918(A), 1951, and 2088(A)(12), as amended by 2021 La. Acts 259, § 2 (eff. Aug. 1, 2021). The appellate record was supplemented with the amended judgment on February 10, 2022. This Court issued an order maintaining the appeal on February 25, 2022. See Minton v. Acosta, 2021-1180 (La.App. 1 Cir. 2/25/2022) (unpublished action).
STANDARD OF REVIEW
The existence of a redhibitory defect is a question of fact, which cannot be disturbed on appeal unless the record as a whole establishes that the finding is manifestly erroneous or clearly wrong. Hoffmann v. B & G, Inc., 2016-1001 (La.App. 1 Cir. 2/21/17), 215 So.3d 273, 277.
REDHIBITION
The purpose of the redhibitory action is to protect buyers from latent defects undisclosed by corrupt dealers by restoring the status quo. Aucoin v. S. Quality Homes, LLC, 2007-1014 (La. 2/26/08), 984 So.2d 685, 691-92. The warranty against redhibitory defects is premised on LSA-C.C. art. 2520, et seq. Article 2520 states the following:
The seller warrants the buyer against redhibitory defects, or vices, in the thing sold.
A defect is redhibitory when it renders the thing useless, or its use so inconvenient that it must be presumed that a buyer would not have bought the thing had he known of the defect. The existence of such a defect gives a buyer the right to obtain rescission of the sale.
A defect is redhibitory also 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. The existence of such a defect limits the right of a buyer to a reduction of the price.
The extent of a seller's liability to a buyer for breaching this warranty depends on whether the seller knew, or did not know, of the defect. Aucoin, 984 So.2d at 691. The seller owes no warranty for defects in the thing that were known to the buyer at the time of the sale, or for apparent defects that should have been discovered by a reasonably prudent buyer of such things. LSA-C.C. art. 2521 ; David v. Thibodeaux, 2004-0976 (La.App. 1 Cir. 5/11/05), 916 So.2d 214, 217, writ denied, 2005-1575 (La. 1/27/06), 922 So.2d 545. However, a seller who knows that the thing he sells has a defect but omits to declare it, or a seller who declares that the thing has a quality that he knows it does not have, is liable to the buyer for the return of the price with interest from the time it was paid, for the reimbursement of the reasonable expenses occasioned by the sale and those incurred for the preservation of the thing, and also for damages and reasonable attorney fees. LSA-C.C. art. 2545.
A defect is apparent if a reasonably prudent buyer, acting under similar circumstances, would discover it through a simple inspection of the property. David, 916 So.2d at 217. A simple inspection is more than a casual observation; it is an examination of the article by the buyer with a view of ascertaining its soundness. Factors considered in determining whether an inspection is reasonable include the knowledge and expertise of the buyer, the opportunity for inspection, and assurances made by the seller. David, 916 So.2d at 217.
While a seller warrants his buyer against redhibitory defects, or vices, in the thing sold pursuant to LSA-C.C. art. 2520, this warranty may be excluded or limited per LSA-C.C. art. 2548, which provides, in pertinent part:
The parties may agree to an exclusion or limitation of the warranty against redhibitory defects. The terms of the exclusion or limitation must be clear and unambiguous and must be brought to the attention of the buyer.
A buyer is not bound by an otherwise effective exclusion or limitation of the warranty when the seller has declared that the thing has a quality that he knew it did not have.
Under this article, in order to be effective, such waiver of warranty must satisfy three requirements: (1) be written in clear and unambiguous terms; (2) be contained in the contract; and, (3) either be brought to the attention of the buyer or explained to him. Brown-Knight v. Just Add Gas, Inc., 2011-2269 (La.App. 1 Cir. 11/29/12), 2012 WL 5990273, at *6 (unpublished), citing Ross v. Premier Imports, 96-2577 (La.App. 1 Cir. 11/7/97), 704 So.2d 17, 21, writ denied, 97-3035 (La. 2/13/98), 709 So.2d 750. Nevertheless, an otherwise effective exclusion or limitation of the warranty against redhibitory defects is not effective if the seller commits fraud, as defined in the Civil Code, upon the buyer. Shelton v. Standard/700 Associates, 2001-0587 (La. 10/16/01), 798 So.2d 60, 64. Phrased differently, a seller cannot contract against his own fraud and relieve himself of liability to fraudulently induced buyers. Indeed, such a contract would be contra bonos mores and unenforceable. Id. The seller bears the burden of proving waiver of the warranty. Bo-Pic Foods, Inc. v. Polyflex Film & Converting, Inc., 95-0889 (La.App. 1 Cir. 12/15/95), 665 So.2d 787, 791. Additionally, waivers of the warranty are strictly construed against the seller. Tyson v. Brentley Marchand, 2014-1767 (La.App. 1 Cir. 6/5/15), 2015 WL 3548159, at *5 (unpublished).
THE APPELLATE RECORD
The record before us contains no transcript of the trial proceedings, and the minutes reflect that no court reporter was present for the trial. The rules governing the constitution of a record on appeal where no transcript of testimony is made in the trial court are found in LSA-C.C.P. arts. 2130 and 2131, which provide as follows:
Article 2130. Record on appeal; statement of facts
A party may require the clerk to cause the testimony to be taken down in writing and this transcript shall serve as the statement of facts of the case.
The parties may agree to a narrative of the facts in accordance with the provisions of Article 2131.
Article 2131. Same; narrative of facts
If the testimony of the witnesses has not been taken down in writing the appellant must request the other parties to join with him in a written and signed narrative of the facts, and in cases of disagreement as to this narrative or of refusal to join in it, at any time prior to the lodging of the record in the appellate court, the judge shall make a written narrative of the facts, which shall be conclusive.
The narrative of facts contemplated in such instances should contain the trial court's conclusions and findings of fact. Fairman v. Robert, 181 So.2d 459, 462 (La.App. 1 Cir. 1965).
The appellant bears the responsibility of securing either a transcript or a narrative of facts. Therefore, an inadequacy in the record is imputable to the appellant. Oliver v. Cal Dive International, Inc., 2002-1122 (La.App. 1 Cir. 4/2/03), 844 So.2d 942, 947, writ denied, 2003-1230 (La. 9/19/03), 853 So.2d 638, and writ denied, 2003-1796 (La. 9/19/03), 853 So.2d 648. Where the record contains neither a transcript of evidence nor a narrative of the facts pursuant to LSA-C.C.P. art. 2131, the judgment is entitled to a presumption of correctness. Tillery v. State, Department of Public Safety & Corrections, 2007-1228 (La.App. 1 Cir. 2/8/08), 984 So.2d 742, 745, n.1. However, when a record contains written reasons for judgment by a trial judge which reveal substantially all of the material testimony, and the record is sufficiently complete to permit full consideration of the issues presented on appeal, the reasons for judgment will be considered in lieu of the narrative of facts required by LSA-C.C.P. art. 2131. Moity v. Guillory, 430 So.2d 1243, 1244 (La.App. 1 Cir.), writ denied, 437 So.2d 1148 (La. 1983).
In this matter, the defendants filed a pleading captioned "Motion and Order for Written Findings of Fact and Reasons for Judgment" on April 28, 2021. In response, the trial court issued "Reasons for Judgment" on May 20, 2021. The pertinent facts set forth in the written reasons read as follows:
Testimony was presented. [Jody] Daniel Acosta and Keith Michael Daigle, [defendants,] testified on [their own behalf]. Charles Brady, Jr. testified on behalf of the plaintiffs and was denied by the Court as an expert witness. [Coby] Shawn Minton and his wife [Caitlyn] Bourgeois Minton also testified about
the purchase of the home, the flooring issues[,] and how they remedied the flooring issues.
The Court found the testimony of [Mr. Minton] to be credible. [Mr. Minton] described how the sale of the home materialized. The home was inspected by Corner-2-Corner. In the inspection report, the inspection did not find any problems with the flooring. After the sale of the home [on March 29, 2019,] the Minton[s] began having issues in June 2019. Mr. Minton testified that the worst part was in the living room, (See Exhibits 1 and 6)[,] but they also had issues in the bedroom and bumps on the floor. Darian Mayon and Charles Brady were consulted by the Mintons regarding the flooring.
Payments were made to Morgan's Construction, Inc. and Perque[.] The Mintons' initial cost[s] were in the amount[s] of [$33,615.14] to repair the floors [(See Exhibits 3 and 4)], [$495.00] for Charles Brady, Jr. (See Exhibit 2) as a flooring professional[,] and [$180.00] for storage cost[s] (See Exhibit 5)[.]
[Mr. Acosta] testified that he was a firefighter who decided to flip homes. Mr. Acosta testified that he was not a contractor and that they could make any improvements on the home due to him owning the home. He testified that he did not test for moisture. He was adamant that the new fence constructed by the Mintons caused the issue of the buckling floors due to lack of ventilation. Mr. Acosta further testified that they bought the flooring from Home Depot and followed the guidelines. He stated that there were no issues for eighteen (18) months. This house was the only home that he and his partner renovated. The home was bought at a foreclosure sale.
[Mr. Daigle] testified that he was a subcontractor glass installer. He stated that he and Mr. Acosta installed the floors. He stated that while they were repairing the floors, there was a bump in the floor. The bump was cut out and replaced with the plywood.
...
The Court found that the defendants knew or should have known about the flooring issues due to the bump in the floors and repairing it with plywood. The defendants did not seek any professional advice on the bump.
Through the testimony of the parties, this Court found that the defect was not visible. However, [the defendants] knew about a bump in the floor because they had it cut out during the renovation. Neither [of the defendants] got a professional or expert to review the floors during the renovation. [The] Court found that the house was structurally sound and that the flooring was the main issue for the Mintons. The Mintons testified that the floors had bumps and that the flooring buckled.
...
... The Mintons had the property inspected and there were no issues with the flooring at the time.
...
... The [defendants] knew of the bump in the flooring during the renovation. The [defendants] did not disclose this defect to the [Mintons]; instead, they cut out the lump and replaced it with plywood. The [defendants] chose not to disclose this fault.
No testimony was presented that the [defendants] made the [Mintons] aware of this issue[,] nor was there any disclosure made by the [defendants]. As a result, the [Mintons] had no notice of the existence of this problem with the flooring... A house with lumps in the
floor and buckling of the floor is not reasonably fit for ordinary use.
The property was purchased "as is"... Although the language [of the waiver clause] was [clear] and unambiguous, the property had a defect.
...
After hearing the testimony of the parties, this Court found that there was a redhibitory defect in the flooring and [the defendants] knew or should have known there was an issue with the flooring. The Mintons incurred [$33,615.14] in cost[s] for repairs and this Court awarded a reduction in the amount of [$33,615.14] in the price of the home. The Court further awarded [$180.00] for the cost of the storage. The [Court] awarded [attorney's] fees along with judicial interest from the date of demand. Court costs are cast to the defendants.
Having reviewed the trial court's written reasons, it is apparent that they reflect substantially all of the material testimony, as well as the trial court's conclusions and findings of fact.
Moreover, the written reasons are supplemented by and consistent with the documentary evidence present in the record. The defendants offered the January 28, 2019 home inspection report prepared for the Mintons, the February 13, 2019 purchase agreement, and the March 29, 2019 cash deed. The waiver clause in the cash deed provided as follows:
Although the court minutes do not identify each exhibit that was entered into the record during trial, the minutes do indicate that evidence was "adduced, completed, and submitted on behalf of" the Mintons and the defendants. R. 1,
The property herein conveyed is being sold AS IS, WHERE IS, the Vendor and the Vendee hereby acknowledge and recognize that the Property being sold and purchased is to be transferred in "as is" condition and further the Vendee does hereby waive, relieve and release the Vendor 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 Sale Price pursuant to Louisiana Civil Code Article 2541, et seq. Additionally, the Vendee acknowledges that this sale is made without warranty of fitness for ordinary or particular use pursuant to Louisiana Civil Code Article 2524.
The home inspection report reflects that the floor and subflooring were in "satisfactory" condition throughout the house, and defines "satisfactory" as "functional without observed signs of a substantial defect." The record also contains exhibits offered by the Mintons, including photographs of the floor, which reflect bumps and buckling as described in the trial court's written reasons, and various proposal quotes, invoices, and proofs of payment regarding the repair costs incurred. Thus, the record is sufficiently complete to permit full consideration of the issues presented on appeal, and we will consider the reasons for judgment in lieu of the narrative of facts required by LSA-C.C.P. art. 2131. See Moity, 430 So.2d at 1244 and Fairman, 181 So.2d at 462.
DISCUSSION
On appeal, the defendants argue in their first and second assignments of error that the trial court erred in determining that a redhibitory defect existed at the time of the sale and that the defendants knew or should have known of the defect. As set forth above, the existence of a redhibitory defect is a question of fact, which cannot be disturbed on appeal unless the record as a whole establishes that the finding is manifestly erroneous or clearly wrong. Hoffmann, 215 So.3d at 277. Likewise, the question of what one knew or should have known is a question of fact subject to the manifest error standard of review. See Matherne v. Barnum, 2011-0827 (La.App. 1 Cir. 3/19/12), 94 So.3d 782, 791, writ denied, 2012-0865 (La. 6/1/12), 90 So.3d 442 ("We find no manifest error in the trial court's determination that... [the defendant] should have known that his defective workmanship would cause that kind of loss to the [the plaintiffs]") and Southern Marsh Collection, LLC v. State Traditions, LLC, 2017-0459 (La.App. 1 Cir. 11/1/17), 2017 WL 4985217, at *6 (unpublished), writ denied, 2017-2013 (La. 2/2/18), 233 So.3d 617 ("The question of what [the defendant] knew or should have known for determining misappropriation under the facts presented herein raises a question of fact not law").
Here, as set forth above, the trial court explicitly found that the bumps and buckling of the floors rendered them not reasonably fit for ordinary use and constituted a redhibitory defect. Considering the defendants' testimony that they repaired a bump in the floor while installing the flooring, the trial court further connected the bump to the redhibitory defect, and concluded that the defendants knew or should have known of the redhibitory defect because they knew about the previous bump. Moreover, the trial court found that there was no indication that the Mintons knew of the defect prior to the sale, as there was no evidence of problems with the flooring in the home inspection report, nor was there any indication or testimony that the defendants disclosed the previous issue with the floor to the Mintons. Thus, based on the limited record before us, and in light of the presumption of correctness the trial court's judgment is entitled to, we cannot say that the trial court manifestly erred in finding the existence of a redhibitory defect and that the defendants knew or should have known of the defect. The defendants' first and second assignments of error lack merit.
The defendants' third assignment of error contends that the trial court erred in failing to apply the waiver clause and find that it precluded the Mintons' claims. As discussed above, LSA-C.C. art. 2548 provides that a buyer is not bound by an otherwise effective exclusion or limitation of the warranty against redhibitory defects "when the seller has declared that the thing has a quality that he knew it did not have," or in other words, when the seller has committed fraud. See LSA-C.C. art. 2548 and Shelton, 798 So.2d at 64.
Fraud is a misrepresentation or a suppression of the truth made with the intention either to obtain an unjust advantage for one party or to cause a loss or inconvenience to the other. LSA-C.C. art. 1953. In pleading fraud, the circumstances constituting fraud must be alleged with particularity, although knowledge may be alleged generally. LSA-C.C.P art. 856. While fraud may result from silence or inaction, mere silence or inaction without fraudulent intent does not constitute fraud. LSA-C.C. art. 1953 ; Schilling v. Bernhard Brothers Mechanical Contractors LLC, 2012-2105 (La.App. 1 Cir. 9/13/13), 186 So.3d 658, 665, writ denied, 2013-2378 (La. 12/6/13), 129 So.3d 537. Fraudulent intent, or the intent to deceive, is a necessary and inherent element of fraud. Fraud cannot be predicated upon mistake or negligence, no matter how gross. Id. Fraud need only be proven by a preponderance of the evidence and may be established by circumstantial evidence. LSA-C.C. art. 1957. There are three basic elements to an action for fraud against a party to a contract: (1) a misrepresentation, suppression, or omission of true information; (2) the intent to obtain an unjust advantage or to cause damage or inconvenience to another; and (3) the error induced by a fraudulent act must relate to a circumstance substantially influencing the victim's consent to (a cause of) the contract. Shelton, 798 So.2d at 64. A trial court's determination of the existence or absence of fraud is a question of fact that will not be disturbed on appeal absent manifest error. Smith v. Roussel, 2000-1028 (La.App. 1 Cir. 6/22/01), 809 So.2d 159, 164.
Considering these precepts in light of the trial court's written reasons, it is plain that the trial court made a factual determination that fraud was properly alleged and that the elements constituting fraud were present in this case. Regarding the initial requirement that the circumstances constituting fraud be alleged with particularity, the Mintons' petition for damages alleged that the defendants presented the home as well built and of superior quality, that the defendants intentionally concealed and/or failed to reveal the defect, and that the defendants did so with the intent of gaining an unjust advantage and fraudulently inducing them to consent to the sale. Thus, the circumstances constituting fraud were properly alleged.
With respect to the existence of the three elements of fraud, the trial court explicitly found that the defendants knew or should have known of the defect and did not disclose it, which constituted a factual finding that there was an omission of true information. Likewise, the trial court explicitly found that the floor was affected by a redhibitory defect that rendered it unfit for use, which constituted a factual finding of the existence of an error that substantially influenced the Mintons' consent to the sale. Finally, the following statement from the trial court's reasons reflects a factual finding that the defendants had the intent to obtain an unjust advantage or to cause damage or inconvenience to the Mintons:
The [defendants] knew of the bump in the flooring during the renovation. The [defendants] did not disclose this defect to the [Mintons]; instead, they cut out the lump and replaced it with plywood. The [defendants] chose not to disclose this fault.
Here, the trial court plainly found that rather than disclosing the existence of the defect, the defendants deliberately concealed the defect and intentionally withheld knowledge of its existence from the Mintons. Thus, the trial court's written reasons reflect that the trial court made the factual determination that the defendants committed fraud upon the Mintons through their silence or inaction.
Having thoroughly reviewed the entirety of the limited record before us, and keeping in mind both that the trial court's factual findings are subject to the manifest error standard of review and that the trial court's judgment is entitled to a presumption of correctness, we cannot say that the trial court's finding regarding the existence of fraud was manifestly erroneous. Further, because an otherwise effective exclusion of the warranty against redhibitory defects is not effective if the seller commits fraud upon the buyer, the Mintons were not bound by the waiver clause. See LSA-C.C. art. 2548 ; Shelton, 798 So.2d at 64. Accordingly, we affirm the judgment of the trial court.
CONCLUSION
For the above and foregoing reasons, the February 3, 2022 judgment of the trial court is affirmed. Costs of this appeal are assessed to Jody Daniel Acosta and Keith Michael Daigle.
AFFIRMED.
Theriot, J. concurs.