NEW ORLEANS ASSOCIATION PROCRASTINATORS’ PROGRAM TUESDAY, DECEMBER 18, 2018

SELECTED RECENT DEVELOPMENTS SALES AND REAL (JANUARY 1, 2018 – DECEMBER 18, 2018)

Professor Melissa T. Lonegrass

Harriet S. Daggett-Frances Leggio Landry Professor of Law Bernard Keith Vetter Professor of Studies Wedon T. Smith Professor in Civil Law LSU Paul M. Hebert Law Center [email protected]

1 TABLE OF CONTENTS

A. Changes to Real Estate Commission’s Property Disclosure Document, effective March 1, 2018...... 3 1. Elimination of “No” Response...... 3 2. Disclaimer of Seller Liability...... 4 3. Property Disclosure Exemption Statement ...... 5 B. Purchase Agreements ...... 6 1. Noles-Frye Realty (NAI Latter & Blum) v. Dixon, 246 So. 3d 603 (La. App. 3 Cir. 5/9/2018)...... 6 2. Wesley v. Our Lady of the Lake Hospital, Inc., No. 2017 CW 0767, 2018 WL 3005307 (La. App. 1 Cir. 6/14/2018) (unpublished)...... 7 3. Burgess v. Shi Gang Zheng, No. 2017-CA-0665, 2018 WL 4923572 (La. App. 4 Cir. 10/10/2018)...... 8 C. Redhibition ...... 10 1. Jackson v. European Service, Inc., 246 So. 3d 743 (La. App. 2 Cir. 2/28/2018)...... 10 2. Dauterive v. Tile Redi, LLC, 246 So. 3d 802 (La. App. 5 Cir. 4/25/2018)...... 11 3. Nickel v. Ford Motor Co., 247 So. 3d 829 (La. App. 3 Cir. 5/23/2018)...... 12 4. Decker v. Melton, No. 253 So. 3d 856 (La. App. 2 Cir. 8/15/2018); writ denied No. 2018-C-1530, 2018 WL 6398771 (La. 12/3/2018)...... 13 5. Franco v. Mercedes-Benz USA, LLC, 17-CA-431, 2018 WL 5021090 (La. App. 5 Cir. 10/17/18)...... 14 D. Classification: Lease vs. Bond for ; Lease vs. Sale ...... 15 1. Giroir v. Thomas, No. 2017 CA 1021, 2018 WL 1556193 (La. App. 1 Cir. 3/29/2018) (unpublished)...... 15 2. Double NRJ Trucking, Inc. v. Johnson, 247 So. 3d 1125 (La. App. 5 Cir. 5/16/2018). 17 E. Subsequent Purchaser Doctrine ...... 18 1. Catahoula Lake Investments, LLC v. Hunt Oil Co., 23 So. 3d 585 (La. App. 3 Cir. 1/10/2018)...... 18

2 A. Changes to Real Estate Commission’s Property Disclosure Document, effective March 1, 2018

The Residential Property Disclosure Act (RPDA) requires sellers of residential immovable property to furnish purchasers with a Property Disclosure Document. See La. Rev. Stat. §§ 9:3195–3200. This disclosure is generally required for any transfer of an interest in residential immovable property, whether by sale, exchange, bond for deed, lease with option to purchase, or any other option to purchase, including transactions in which the assistance of a real estate licensee is utilized and those in which such assistance is not utilized. La. Rev. Stat. § 9:3197A. The RPDA is subject to multiple exceptions, including but not limited to transfers ordered by a , transfers to a mortgagee by a mortgagor or successor in interest who is in default, transfers made by a succession representative, and transfers between co-owners, blood relatives, and spouses. La. Rev. Stat. § 9:3197B.

The Louisiana Real Estate Commission is charged with the responsibility of promulgating a form Residential Property Disclosure Document (RPDD). La. Rev. Stat. § 9:3198. While sellers are not required to use this form, the disclosure document prepared by the seller must meet the minimum requirements of the form prepared by the Real Estate Commission. Id. The Residential Property Disclosure Document requires sellers to disclose the existence of numerous defects and conditions in the property, including (but not limited to) the existence of servitudes burdening the property, the occurrence of flooding, past or current infestations of terminates or other wood-destroying insects, structural defects and defects in the plumbing, water, gas, sewerage, electrical, or heating and cooling systems and appliances.

The Louisiana Real Estate Commission’s Property Disclosure Document is available online at https://lrec.gov/wp-content/uploads/Forms/MandatoryForms/Real-Estate-Property- Disclosure-redline.pdf.

1. Elimination of “No” Response

One significant change to the RPDD is the elimination of the “no” response for each item required to be disclosed. An understanding of this change requires a brief refresher on a recent Louisiana Supreme Court case on this issue.

In Valobra v. Nelson, 136 So. 3d 793 (La. 2014) (per curium), the sellers completed an RPDD which, at the time, required them to check one of three boxes when answering questions regarding defects in the property: “yes,” “no,” or “no knowledge.” The sellers checked the “no” box for numerous defects which the buyers later alleged existed at the time of delivery. Once the buyers filed suit, the sellers asserted the buyers’ waiver of the warranty against redhibitory defects, which was included in the Act of Sale. In response, the buyers alleged that the sellers fraudulently induced the waiver through misrepresentation, and thus, the waiver was negated. (Recall that Louisiana Civil Code article 2548 provides that “A buyer is not bound by an otherwise effective exclusion or limitation of the warranty when the seller has declared that the property sold has a quality he knew it did not have.” The Louisiana Supreme Court has interpreted this article to mean that a waiver or limitation of redhibition is unenforceable whenever it is inducted by either an affirmative fraudulent misstatement or a fraudulent omission.

3 See Shelton v. Standard/700 Associates, 798 So. 2d 60 (La. 2001)). The sellers filed an exception of no cause of action, claiming that they were never in a position to know of any defects in the property as a result of the fact that, as co-trustees of trusts that came to co-own the property following the death of one of the former residents, they never resided there. The Louisiana Supreme Court denied the sellers’ exception, holding that the buyers had a cause of action to challenge the validity of the waiver, which they would presumably attempt to do by proving that the sellers had committed fraud—not in the misrepresentation of the existence of defects, but in the misrepresentation of their level of knowledge about potential defects.

Although the Court’s opinion in Valobra addressed only whether the buyers had stated a cause of action (and did not address the merits of the buyers’ claims), the opinion raised significant concerns for sellers. After Valobra, it seemed clear that a seller completing an RPDD could select “no” only when the seller was absolutely sure that an item required to be disclosed did not exist; in contrast, if the seller lacked the requisite knowledge to make such a determination, the seller should select “no knowledge.” If the seller selected “no” when the seller should have selected “no knowledge,” then the mistake could later render an otherwise valid waiver of the warranty against redhibitory defects unenforceable.

In addition, selecting the wrong response could also subject a seller to liability under an independent fraud action. Recall that in 2013, the Louisiana Supreme Court held in Stutts v. Melton, 130 So. 3d 808 (La. 2013) that “the only reasonable interpretation of [the RPDA] is that a seller who makes a willful misrepresentation is liable.” Further, the Court opined, “Liability can be found in the fraud articles as the RPDA also provides that “[t]his chapter shall not limit or modify any obligation between buyers and sellers created by any other or that may exist in law.” Id. (quoting La. Rev. Stat. § 9:3200).

Of course, in many circumstances it is difficult (if not impossible) for a seller to know with absolute certainty that a defect does not exist. Further, the line between the “no knowledge” and “no” responses is a thin one. Faced with the choice of selecting “no” versus “no knowledge,” a seller who possesses any doubts about the existence of an item required to be disclosed should select “no knowledge” rather than the definitive “no.” On the other hand, reasonable sellers might question whether the “no knowledge” response is appropriate when the seller possesses some knowledge that indicates that a defect does not exist (such as a recent inspection that did not reveal the existence of that defect).

To remedy these concerns, the Louisiana Real Estate Commission has revised the RPDD to eliminate the “no” response altogether. A seller may now only check, for each item for which disclosure is required (1) “yes” – if the item exists; or (2) “no knowledge” if, to the best of the sellers’ knowledge, information or belief, the item does not exist.

2. Disclaimer of Seller Liability

Secondly, the RPDD has been revised to include the following disclaimer of seller liability:

4 “The SELLER shall not be liable for any error, inaccuracy, or omission, of any information required to be delivered to the BUYERS if the error, inaccuracy, or omission, was not a willful misrepresentation, according to the best of the SELLER’s information, knowledge and belief or was based on information provided by a public body or other person with a professional license or special knowledge, who provided a written or oral report or opinion that the SELLER reasonably believed to be correct and which was transmitted by the SELLER to the BUYER.

This change seems designed to prevent a seller from being held liable for failing to disclose a defect or condition of which the seller was reasonably unaware. However, the effect of the inclusion of this statement in the RPDD is probably negligible, as the statement does not add anything to existing law. The RPDA already states (and has stated for some time) as follows:

La. Rev. Stat. § 9:3198 * * * * E. A seller shall not be liable for any error, inaccuracy, or omission of any information required to be delivered to the purchaser in a property disclosure document if either of the following conditions exists:

(1) The error, inaccuracy, or omission was not a willful misrepresentation according to the best of the seller’s information, knowledge, and belief.

(2) The error, inaccuracy, or omission was based on information provided by a public body or by another person with a professional license or special knowledge who provided a written or oral report or opinion that the seller reasonably believed to be correct and which was transmitted by the seller to the purchaser.

Nevertheless, the inclusion of this language in the RPDD serves to alert buyers of the extent of a seller’s liability under the RPDA, and without question to the extent that the RPDD can educate prospective buyers of residential property about the relevant law, the change is laudable.

3. Property Disclosure Exemption Statement

A third significant change to the RPDD involves a revision to the “Exemption Statement” that accompanies the seller’s disclosures. Formerly, the exemption statement was titled “Information Statement for Louisiana Residential Property Disclosure,” and merely provided an exhaustive list of the transfers which are exempt from the requirement to provide a property disclosure document and called for the parties to sign and date the form.

The RPDD has been revised to include two statements, posed in the alternative, following the list of exempted transactions. The disclosing seller is required to select and sign one of the statements. The statements are as follows:

5 SELLER claims that he/she is exempt from filling out the Property Disclosure Document and warrants that SELLER has no knowledge of known defects to the property. SELER is claiming exemption numbers(s) above. Seller (sign) (print) Date Time BUYER (sign) (print) Date Time

SELELR has reviewed this Exemption page. SELLER does not claim any of the Exemptions listed on this page. Accordingly, SELLER will complete the Property Disclosure Form. Seller (sign) (print) Date Time BUYER (sign) (print) Date Time

Significantly, under this revision, a seller selecting the first option now “warrants” that he/she has no knowledge of known defects to the property.

B. Purchase Agreements

1. Noles-Frye Realty (NAI Latter & Blum) v. Dixon, 246 So. 3d 603 (La. App. 3 Cir. 5/9/2018).

Following the failure of a purchase agreement, the plaintiff (a realty company) commenced a concursus proceeding so that the sellers and the purported buyer could advance their claims of ownership to the underlying deposit, which was held in escrow. The parties to the underlying transaction were named as defendants in the proceeding. The record indicates that the buyer sought to purchase residential property in Alexandria offered for sale by the sellers. Although the closing date was twice extended, the sale was not completed.

The purchase agreement indicated that the sale was to be a financed one. The buyer contended that because she was unable to secure financing, she was entitled to the return of the deposit. However, the purchase agreement stated that the loan would be for the sum of “TBD”. Relying on the purchase agreement, the seller argued that the sale was not, in fact, conditioned upon the buyer obtaining financing. Following a hearing, the court determined that the buyer failed to prove that she made a good faith effort to obtain financing. Thus, the trial court ruled in favor of the sellers and ordered they were entitled to the deposit. The buyer appealed, arguing that (1) the trial court erred by shifting the burden to the buyer; (2) holding that the buyer did not make a reasonable effort to fulfill her obligations; and (3) finding that she forfeited her deposit to the sellers.

On the issue of the burden of proof, the court rejected the plaintiff’s argument that the seller had the burden to prove that the had been breached in bad faith. First, the court noted that the buyer’s argument did not account for the fact that this was a concursus proceeding. Louisiana Code of Article 4651 explains that such a proceeding “is one in which two or more persons having competing or conflicting claims to money, property, or mortgages or privileges on property are impleaded and required to assert their respective claims contradictorily against all other parties to the proceeding.” Given that posture, it bears repeating that each party claimed the deposit by virtue of adverse provisions within the agreement. The sellers contended that the agreement contained no financing contingency, that the buyer failed to complete the sale, and, therefore, they were able to retain the deposit by enforcing the “default of

6 agreement by buyer” provision of the purchase agreement. The buyer contrarily referenced the agreement’s “return of deposit” provision, asserting that the agreement was subject to her ability to obtain a loan and that the loan could not be obtained. However, that provision further indicates that the deposit was to be returned “only if the BUYER has made timely application for the loan and made good faith efforts to obtain the loan.” Because she initiated her claim under the contractual provision requiring her good faith effort in obtaining the loan as a further condition for the return of the deposit, she bore the burden of proving that the condition was fulfilled.

On the merits, the court held that the trial court was manifestly erroneous in determining that the buyer failed to meet her burden of proof. The court noted that buyer testified that she applied for financing with four different lenders and was unable to obtain a loan in each instance. The buyer even testified that she completed certain repairs to the home to facilitate approval by one lender, but was ultimately unable to obtain approval from any of the institutions. In particular, she testified that she encountered difficulty in obtaining financing due to a poor credit history related to an earlier divorce. Despite the trial court’s determination that the buyer’s testimony was credible, the trial court held that she did not meet her burden of proof because “she did not produce any documents to prove she applied for a loan and didn’t subpoena one loan officer to testify why her financing was denied.” Further, the trial court stated, “[a]ll that would have been required was the loan officer from Capital One in Alexandria to appear in Court with the application for financing and testify that she did apply and the reason her request was denied.” While it was apparent that the buyer did not supplement her testimony with corroborating documentation, the appellate court found that the trial court erroneously concluded that her failure to do so was fatal to her claim. Specifically, the appellate court held that any requirement that she produce a loan officer and a “reason” for denial of her loan “strays from the confines of the Agreement,” which required only that she make a timely application for the loan and make a good faith effort to obtain the loan. Accordingly, the court concluded that the record dictated a finding that the buyer satisfied her burden of proving her entitlements to the return of the deposit and rendered ordering payment of the deposit to the buyer.

2. Wesley v. Our Lady of the Lake Hospital, Inc., No. 2017 CW 0767, 2018 WL 3005307 (La. App. 1 Cir. 6/14/2018) (unpublished).

The defendant executed a purchase agreement with the Wesleys to purchase a particular piece of immovable property and one of the conditions for the sale was that the Wesleys obtain from the City of Baton Rouge a revocation regarding the public’s right of use of a 60-foot right of way on the property. The original term for the purchase agreement was 60 days from the December 10, 2007 effective date. The Wesleys were not able to obtain the revocation from the city within the 60-day timeframe, so the parties amended the purchase agreement to state that the right of way would be omitted from the property description in the sale and the defendant would purchase the remainder of the property. The new purchase agreement also stipulated that once the Wesleys obtained the revocation from the City regarding the right of use, the defendant would purchase that property at $6.85 per square foot and gave the Wesleys a 90-day period to obtain the formal revocation from the City, and if they did not then the defendant would not have an obligation to purchase that property.

7 The revocation process extended past the 90-day period set forth in the amended purchase agreement. After the revocation was finalized and recorded and other title defects were cured, the plaintiffs contacted the defendant and indicated that they were ready and willing to close on the remaining property. The defendant informed the plaintiffs that it was not interested and refused to purchase the property. The Wesleys filed suit against the defendant, claiming that the defendant was aware that the title work and revocation process would take longer than 90 days and demanded specific performance. The defendant claimed that the plaintiffs had no cause of action since they failed to obtain the revocation of the right of use within the 90-day period agreed upon by the parties.

The trial court sustained the defendant’s peremptory exception and dismissed the Wesleys’ claim. The Wesleys appealed. The appellate court allowed the Wesleys to amend their petition and remanded the case. In their amended petition the Wesleys essentially alleged that the defendants orally and through written communications extended or modified the 90-day period set in the amended purchase agreement. The defendant brought the exception of no cause of action again and the trial court ruled in favor of the defendant again. The Wesleys appealed.

The appellate court affirmed. The court observed that the Wesleys alleged in their amended petition that there were oral and written communications ongoing between the defendants attorney and the Wesleys attorney in which the 90 day period was waived and the agreement was altered because the defendant, through its attorney, continued to express an interest in purchasing the property after the 90 day period lapsed. However, pursuant to the explicit terms of the purchase agreement, which was incorporated into the amended purchase agreement, the purchase agreement could not be changed orally; rather, any modification of the agreement had to be in writing and signed by the parties. Since there was no allegation of a subsequent modification of the amended purchase agreement that was in writing and signed by the parties, the Wesleys failed to set forth a cause of action. The court also held that to the extent that the Wesleys claimed that they were entitled to specific performance based on the principles of detrimental reliance (i.e., that they relied on the representations made by the defendant’s attorney), the Wesleys likewise did not state a cause of action, for two reasons. First, the purchase agreement specifically set forth that the parties could not rely on statements or actions of the other party’s representatives. Second, this matter involves the sale of immovable property and with respect to immovable property, reliance on a promise of sale that is not in writing, or that does not meet the formal requirements for the sale it contemplates, is not justifiable or reasonable as a matter of law.

3. Burgess v. Shi Gang Zheng, No. 2017-CA-0665, 2018 WL 4923572 (La. App. 4 Cir. 10/10/2018).

The Blanchards were the owners of property located in English Turn in New Orleans, which they listed for sale. On July 31, 2015, their agent, Britt Galloway, received an offer from Mr. Zheng's agent, Delisha Boyd, to purchase the property for $990,000. The offer contemplated an “all cash sale” which expired on August 1, 2015. In response, the Blanchards made a counteroffer which incorporated the terms of Zheng's offer but added additional terms. Mr. Zheng accepted the counteroffer and emailed a copy of a check for the $10,000 deposit to Ms. Boyd, who forwarded it Mr. Galloway. He then submitted proof of funds and had the home inspected on August 7,

8 2015. In anticipation of the September 30, 2015 closing on the sale of the home, the Blanchards moved out of the home.

Because he was allegedly out of town, Mr. Zheng, through Ms. Boyd, requested additional time for the closing, and the Blanchards agreed to grant an additional fifteen days for the closing provided that Mr. Zheng pay an additional deposit of $25,000 or provide his agent with a power of attorney to complete the sale. Ultimately, Mr. Zheng did not appear for the closing on September 30, 2015 and the title company prepared a proces verbal documenting the failure of the sale to be completed. The Blanchards then sent Mr. Zheng a notice of default on October 1, 2015. This suit followed. In their petition the Blanchards sought to enforce the liquidated damages provision of the purchase agreement. More specifically, they sought payment of $99,000 (10% of the sale price), the $10,000 deposit, a $49,500 broker fee (5% of the sale price), and attorney fees and costs.

The Blanchards filed a motion for summary judgment seeking (1) a determination that Mr. Zheng had breached his obligations under the purchase agreement and (2) a determination that they were entitled to the stipulated damages set forth in the agreement. The trial court granted summary judgment in plaintiff’s favor regarding (1). As to (2), the court held a trial and ultimately awarded damages, costs, and attorney fees and brokerage fees to the Blanchards. Mr. Zheng appealed. The appellate court determined on procedural grounds that the only issue before the court on appeal was the trial court’s grant of summary judgment regarding (1).

The trial court held that the Mr. Zheng breached the agreement. Specifically, the court found that plaintiffs placed two additional conditions in their counter-offer to Mr. Zheng: that he verify proof of funds within 48 hours of the signed agreement to purchase; and that the property be appraised for more than the purchase price. The court found that those provisions of the contract were suspensive conditions. It is undisputed that Mr. Zheng failed to provide proof of funds within 48 hours. Thus, the application of the stipulated damages clause depended upon Mr. Zheng’s good faith in procuring a proof of funds and/or financing. In support of his argument that the court’s judgment should be reversed, Mr. Zheng maintained that the purchase agreement contained a suspensive condition that was not met and that the contract was therefore unenforceable.

The appellate court agreed with the trial court’s assessment that Mr. Zheng breached the agreement, but did not agree that the two provisions to which the trial court pointed were suspensive conditions. The court reviewed relevant cases involving sales conditioned upon the buyer obtaining financing, then determined that “[i]n the present case, there was no provision in the Agreement which conditioned the sale on Mr. Zheng’s ability to obtain financing. To the contrary, the sale as an “all-cash sale.” The Agreement did contain a section whereby Mr. Zheng could have chosen a “financed sale” which specifically indicated that the ale would be “conditioned upon the ability of BUYER to borrow with this Property as security for” an unspecified loan. However, this option was not selected by Mr. Zheng, who warranted that he “ha[d] cash readily available to close the sale” of the property. While the agreement did require Mr. Zheng to supply “proof of funds” within 48 hours, the court found this requirement to be a term of the sale rather than a condition. That is, the requirement was not an “uncertain event” which suspends the “obligation…until the uncertain event occurs.”

9

C. Redhibition

1. Jackson v. European Service, Inc., 246 So. 3d 743 (La. App. 2 Cir. 2/28/2018).

In 2016, the plaintiff purchased a used truck from the defendant after telling the defendant the intended use for the truck was use for work on a pipeline. Before purchasing the truck, the plaintiff took the truck on a test drive with the defendant who did not indicate that anything was deficient about the automobile. Plaintiff purchased the truck for a total of $13,699. When driving the truck home, the truck stopped working after the plaintiff heard unusual noises and felt the truck shake. Defendant originally told the plaintiff that the truck needed a new battery; however, that did not solve the car’s deficiency. Plaintiff then took the truck to Firestone, where a mechanic told him the motor was no good. When Plaintiff demanded a refund or a replacement vehicle, the defendant’s representative, Ali Moghimi, told him that the car was sold “as is.” Plaintiff gave warranty papers to Moghimi who told him to “get out.” When Plaintiff refused, both individuals called the who made Moghimi turn over the title to the plaintiff.

Plaintiff filed a petition claiming fraud, seeking damages to pay all costs of the proceeding, refund the purchase price, and pay attorney fees. Plaintiff alleged that the defendant “knew the truck was defective when defendant sold it to plaintiff.” Defendant filed a dilatory exception of prematurity on the grounds that the plaintiff signed an arbitration agreement when he bought the truck. Plaintiff filed a motion to stay the proceeding pending arbitration and a motion to strike the exception filed by Defendant’s attorney, Moghimi, who was not licensed to practice law in Louisiana.

Plaintiff then filed into the record a letter from the American Arbitration Association, which declined to administer the arbitration demanded by Plaintiff because Defendant, in the past, failed to comply with the AAA’s policies, failed to timely submit arbitration fees, and/or did not waive certain provisions in the consumer contract that AAA deemed necessary. Furthermore, AAA had previously requested that Defendant remove AAA from its consumer arbitration agreements so there would no confusion for Defendant’s customers.

The trial court denied the exception because arbitration had been attempted and rejected. The court did not rule on the motion to strike, as Moghimi argued he was able to represent the defendant for claims less than $5,000. After the matter was set for trial, the court granted the motion to strike. The trial court ruled in favor of the plaintiff and awarded the plaintiff the return of the purchase price, damages in the amount of $2,900, reasonable attorney fees, legal interest from judicial demand, and all costs of the proceeding. Defendant appealed.

The appellate court noted that when the issue of arbitration is raised by the exception pleading prematurity, the defendant pleading the exception has the burden of showing the existence of a valid contract to arbitrate; once the court finds a valid and enforceable arbitration agreement, and a failure to comply therewith, the court shall order arbitration. Here, the letter indicating the arbitration organization’s refusal to administrate the claim stated that either party could seek relief through the . The trial court did not consider whether the sales invoice expressed an enforceable arbitration agreement, and the Second Circuit declined to determine the issue.

10 Instead, the court upheld the trial court’s ruling that the plaintiff’s effort to arbitrate the claim through AAA was a valid attempt at arbitration and the assignment of error lacked merit.

Defendant argued that the trial court erred in awarding the plaintiff the return of the purchase price because the plaintiff did not tender the vehicle for repairs, the plaintiff refused to abide by the executed limited warranty, there was no proof any defect existed at the time of the sale, and the plaintiff knew the vehicle might soon need repairs. The Second Circuit found it to be clear that the truck had a redhibitory defect at the time of purchase. The only thing that might have been apparent to Plaintiff at that time about the defect was a lit “check engine” light. When Plaintiff acquired about the light, Defendant told him there was no problem with the truck. The truck stopped working within three days of the sale, and Plaintiff attempted to have the truck repaired after notifying Defendant that the truck was not running. Therefore, the court found that Plaintiff was entitled to a return of the full purchase price.

While Defendant argued there was a limited warranty on the truck, the court noted that such an exclusion or limitation must be clear and unambiguous and must be brought to the attention of the buyer, and nothing in the record met such qualifications. Therefore, this assignment is also without merit.

Finally, the court found clear that the defendant was aware of the defect in the truck at the time of sale and attempted to hide the defect from the plaintiff. During the test drive, Defendant’s agent asked Plaintiff if he felt any shaking under the truck or if he heard noises coming from under the truck. Also, the “check engine” light was on and when Plaintiff inquired about the light, Defendant’s agent said nothing was wrong with the truck. When Plaintiff returned to Defendant’s business, Moghimi refused to return the purchase price, called the police on Plaintiff, and lied to the police about Plaintiff’s paperwork. This behavior and the inconvenience and loss of time and money to the plaintiff warranted the trial court’s award of the return of the purchase price, damages, and attorney fees. The trial court’s judgment was affirmed.

2. Dauterive v. Tile Redi, LLC, 246 So. 3d 802 (La. App. 5 Cir. 4/25/2018).

In the process of rebuilding their home following Hurricane Katrina, plaintiffs purchased a custom shower pan for their shower enclosure from Tile Redi on March 3, 2007 and installed it themselves according to the manufacturer’s instructions. Four years later, plaintiffs discovered that the shower pan had been leaking through pinholes in the side of the pan. The leak cased water damage to nearby wood, attracting termites and compounding the damage. Plaintiffs sent photographs to the damage to Tile Redi, complaining that a manufacturing defect of the shower pan was the cause of the damage. Thereafter, Tile Redi allegedly accepted the shower pan for repairs, but did not resolve the complaint before the plaintiff’s filed suit. Plaintiffs brought an action in redhibition, alleging that the pinholes in the shower pan constituted a redhibitory defect. They should rescission of the sale, of the purchase price, and damages in excess of $50,000 for repairs of the property, relocation expenses, and emotional distress. They also sought costs and attorney fees.

Tile Redi filed a prescription of exception, arguing that because Tile REdi was not the manufacturer of the shower pan, plaintiffs’ cause of action was prescribed pursuant to Civil Code

11 article 2534(A)(1), which provides that “[t]he action for redhibition against a seller who did not know of the existence of a defect in the thing sold prescribes in four years from the day delivery of such thing was made to the buyer or one year from the day the defect was discovered by the buyer, whichever occurs first.” In response, plaintiffs maintained that article 2534(A)(1) did not control and that their action was not prescribed on the face of the petition because they had alleged that Tile Redi was both the seller and manufacturer of the shower pan, and was therefore deemed to know of the redhibitory defects pursuant to Louisiana Civil Code article 2545. As a result, they argued, Louisiana Civil Code article 2534(B) controlled, and their claim was not prescribed, as that provision states that “[t]he action for redhibition against a seller who knew, or is presumed to have known, of the existence of a defect in the thing sold prescribes in one year from the day the defect was discovered by the buyer.” At the hearing on the exception, no was introduced by either party and the district court sustained the exception of prescription, dismissing the plaintiffs’ claims against Tile Redi with prejudice. Plaintiffs moved for a new trial, which was denied, and thereafter appealed.

The appellate court observed that Tile Redi, as the exceptor, bore the burden of proof on the exception and that, nevertheless, neither party presented evidence at the hearing. Thus, accepting as true the facts as alleged in the petition, the court held that Tile Redi was both the seller and manufacturer of the shower pan, and that accordingly the action was governed by Louisiana Civil Code article 2534(B). Under this provision, plaintiffs’ action was not prescribed because it was filed within one year of the discovery of the alleged defect.

3. Nickel v. Ford Motor Co., 247 So. 3d 829 (La. App. 3 Cir. 5/23/2018).

The plaintiff, Nickel, purchased a new 2009 Ford Flex from Shetler Ford. The Ford Flex debuted the new Ford SYNC system, an in-vehicle communications and entertainment system designed by Microsoft. The plaintiff experienced multiple problems with the system due to incompatibility issues between Microsoft and Apple, and Shetler Ford eventually replaced the radio navigation system. The plaintiff was thereafter involved in an accident. Shetler Ford and a collision repair center repaired the vehicle. Subsequent to the repairs, the plaintiff stated in his petition that, in addition to the SYNC problems that he was experiencing, “the gauges would sporadically stop working, all of the warning lights/and [sic] indicators would activate, the air conditioner would stop cooling and chimes would sound.” Nickel filed suit against Ford Motor Company and Bolton Ford, a dealership at which Nickel had attempted to have further repairs done. The trial court ruled in Nickel’s favor, granting rescission of the sale and awarding damages and attorney fees.

The defendants appealed, arguing inter alia that the trial court erred in denying Ford’s peremptory exception of prescription and that the trial court erred in finding that Bolton Ford was liable to Nickel for negligent repair, a cause of action lying in rather than in redhibition.

On the issue of prescription, the appellate court held that the plaintiff’s redhibition claim against Ford Motor Company had prescribed under Louisiana Civil Code article 2534(B), which provides that “[t]he action for redhibition against a seller who knew, or is presumed to have known, of the existence of a defect in the thing sold prescribes one year from the day the defect was discovered by the buyer.” The trial court denied the exception of prescription on the basis of

12 the plaintiff’s self-serving statements that he had taken the car into the dealership for repairs routinely, thereby interrupting prescription on his claim pursuant to Louisiana Civil Code article 2534(C) (“In any case prescription is interrupted when the seller accepts the thing for repairs and commences anew from the day he tenders it back to the buyer or notifies the buyer of his refusal or inability to make the required repairs.”). The trial court found that there was no paper trail because Nickel was personal friends with the owner of the Shetler Ford dealership. The appellate court found that the trial court manifestly erred in its finding, and determined that there was no reasonable basis upon which the trial court could have found that Nickel brought the vehicle in for repair subsequent to May 29, 2009 but before the next records were generated by Bolton Ford on September 6, 2011.

As an attorney with experience in redhibition claims, Nickel would have had more awareness than a regular customer that a paper-trail of attempted repairs, even one he created for himself, should have been generated. Furthermore, because there was no special relationship with the owner of Tarver Ford (the successor to Shetler Ford), there was no reason that Tarver Ford would not generate the same records that every other Ford dealership generates when a customer brings a vehicle in for repair.

Moving on to the issue of negligent repair by Bolton Ford, the court reviewed the evidence and concluded that “the facts and testimony are clear that Nickel refused to pay for the repair and, effectively, abandoned his vehicle at the dealership. Considering that Bolton never actually repaired anything because Nickel refused to pay for the repair, it is hard to fathom how it could be found to have negligently repaired Nickel’s Ford Flex or was otherwise negligent in allowing Nickel’s vehicle to remain in storage on its lot.”

4. Decker v. Melton, No. 253 So. 3d 856 (La. App. 2 Cir. 8/15/2018); writ denied No. 2018- C-1530, 2018 WL 6398771 (La. 12/3/2018).

Decker appealed from a judgment partially dismissing her claims of fraud and redhibition related to the sale of a home that Decker purchased from Defendants, Melton and Holloway. Plaintiff alleged that Defendants did not disclose that part of the home was susceptible to flooding prior to her purchase of the home and sought reduction of the purchase price, damages, and attorney fees. The sale of the home was made without warranty, and Defendants completed a property disclosure document prior to the sale wherein they answered “No” with regard to any possible issues with the property regarding flooding. Plaintiff purchased the property and then discovered in the spring of the next year that the property had allegedly previously flooded during Defendants’ ownership of the property. Plaintiff then alleged that she experienced flooding on the property five times after the sale. Plaintiff filed a petition alleging redhibition and fraud, claiming that she spent significant sums of money to repair damage caused by the flooding, and that there were defects in the swimming pool, namely, a leak, broken heater, and sweep motor, that Defendants did not disclose and were not apparent by visible inspection. The trial court found in favor of the Plaintiff with regard to the defective pool heater and dismissed the remaining claims. Plaintiff appealed.

The Second Circuit noted that while a house’s susceptibility to flooding is a redhibitory defect, the mere fact that a house has flooded under extraordinary rainfall is not a redhibitory defect.

13 Redhibitory vices are those vices or defects which render a thing unfit for its intended use and which would have caused the buyer not to purchase the thing had he known of them. The trial court found that it is clear to a reasonably prudent person that the patio in question was enclosed after the home was built and was originally intended to be an out-door area. The patio floor slopes away from the home, with the sidewalk at the same level as the patio. The patio was designed so that rainwater would drain off the patio. The fact that water entered the patio once in 13 years (the incident that occurred when Defendants still lived there) neither renders the patio unfit for its intended purpose, nor does it amount to a redhibitory defect. Furthermore, for the first several “flooding events,” the plaintiff testified that she did not open the wastewater valve on the pool, which was designed to drain the pool into the city sewerage system during a rainstorm and prevent the pool from overflowing. The court also pointed out that Plaintiff testified that water had never entered the home past the enclosed patio area. Accordingly, the judgment of the trial court was affirmed.

5. Franco v. Mercedes-Benz USA, LLC, 17-CA-431, 2018 WL 5021090 (La. App. 5 Cir. 10/17/18).

In 2016, Franco filed a petition of redhibition in which alleged that he purchased an automobile from Mercedes-Benz in 2013 and that in 2016, he received a Safety Recall letter from MBUSA advising him of a potential defect in the driver side front airbag of the vehicle which could result in metal fragments striking the driver or other occupants, possibly causing serious injury or death. The notice advised that while there were no current suitable replacements available, a replacement would be provided at no cost when it did become available. Franco then sent a letter to MBUSA demanding either the use of a loaner vehicle until the defect was eliminated or repurchase of the vehicle, which was denied by phone by MBUSA. Franco further alleged that the defect in the car constitutes a redhibitory defect pursuant to La. Civ. Code art. 2520 in that it renders use of the vehicle either useless or so inconvenient that it must be presumed that he would not have bought it had he known of the defect. Additionally, as a manufacturer of the vehicle. MBUSA is deemed to know of the defect; therefore, Franco sought to recover the purchase price for the vehicle as well as damages suffered.

MBUSA filed a peremptory exception of no cause of action, arguing that Franco’s claims are moot because MBUSA is already required by federal statute to replace the defective airbag at no cost pursuant to a nationwide recall of the defective airbags. The trial court sustained the exception, holding that MBUSA was unaware of the defect at the time of the sale and that Franco had no cause of action unless and until the replacement efforts required by the nationwide recall program were unsuccessful. Franco appealed.

On the issue of redhibition, The Fifth Circuit found that Franco’s petition did set forth facts sufficient to state a cause of action for redhibition as it articulates all of the facts concerning the sale of the automobile, including particulars such as the date, the identities of the buyer and seller, and the price. Although MBUSA argued Franco failed to plead the existence of an actual defect in the vehicle, the language of the petition stated that “[t]he defect in the driver side airbag constitutes a redhibitory defect . . .” While this statement articulated a legal conclusion that Franco had not yet proven, it clearly stated his allegation that the vehicle contained the defective driver side airbag mentioned in the recall letter.

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On the issue of whether the redhibition claim was preempted by federal law, the Fifth Circuit turned to prior the District Court for the Eastern District’s analysis in Stroderd v. Yamaha Motor Corp., which provided that the purpose of the Safety Act is to establish uniform guidelines for motor vehicle safety and to ensure that recalls are properly ordered and administered; therefore, a redhibition claim does not conflict or undermine either of the purposes. Furthermore, the Safety Act expressly preempts conflicting state , but preserves a manufacturer’s liability. Accordingly, the NHTSA did not preempt the redhibition claim, and the Fifth Circuit reversed the judgment of the trial court sustaining the exception of no cause of action and remanded the case for further proceedings.

D. Classification: Lease vs. Bond for Deed; Lease vs. Sale

1. Giroir v. Thomas, No. 2017 CA 1021, 2018 WL 1556193 (La. App. 1 Cir. 3/29/2018) (unpublished).

On February 15, 2016, Johnny Wayne Giroir and James Dale Thomas, Jr. entered into an agreement titled “Assignment of Lease/Purchase” for a parcel of land and a mobile home owned by Giroir. The agreement said that Giroir will “assign, transfer and convey any and all right, title, interest, and all warranties” to Thomas for the price of $40,000. The price was to be paid through a down payment in the amount of $19,124.000, Thomas’ assumption of monthly mortgage payments until the balance was paid, and Thomas’ payment of $300.00 per month after the mortgage was paid and until the purchase price was paid in full, at which time the property would be transferred to Thomas. The agreement also provides: “If LESSEE becomes 90 days delinquent during the term of this agreement, this LEASE/PURCHASE agreement will become null and void and LESSOR has the right to reclaim the property and evict LESSEE.”

At some point a dispute arose between the parties as to amounts due under the agreement and whether homeowner’s insurance was included in the monthly mortgage payment. Thomas made no more payments after July 8, 2016 and on September 21, 2016 Giroir had Thomas served with a Notice to Vacate. When Thomas did not vacate the premises within five days, Giroir filed an eviction proceeding, which was heard in the of the peace court and dismissed. Eventually, Giroir filed a Petition for Possession of Premises in the 16th Judicial District Court in which he alleged that he was entitled to evict Thomas and reclaim the leased premises. After a hearing, judgment was rendered denying Giroir’s request to evict Thomas. The trial court found that there was no valid contract between the parties and, therefore, the trial court lacked authority to evict Thomas. Giroir appealed.

The appellate court reversed. First, it observed that although the parties entered into an agreement titled “Assignment of Lease/Purchase,” the label put on the transaction is not determinative. It is the nature of the obligations, rather than the parties’ characterizations, that governs the classification of a contract. The terms of the Agreement between Giroir and Thomas resemble a bond for deed, i.e., a contract to sell real property in which the purchase price is to be

15 paid by the buyer in installments and the seller agrees to deliver title to the buyer after payment of a stipulated sum. However, the bond for deed set forth a number of particular directives the seller must comply with in a bond for deed transaction, such as appointing a bank to serve as escrow agent to receive payments from the purchaser, and obtaining a guarantee to the purchaser from any mortgage holder that it will release the mortgage when it is paid in full. The Agreement in this case met neither of these statutory requirements. Nevertheless, the Louisiana Supreme Court has made it clear that a contract can be treated as a bond for deed despite its failure to comply with certain particulars of the statutes, especially where the party for whom the omitted protections are designed does not protest their absence. Moreover, even if the Agreement between Giroir and Thomas is not classified as a bond for deed, it is a valid innominate contract.

The court went on to address the trial court’s findings. In denying Giroir’s request to evict Thomas and regain possession of the property, the trial court did not classify the Agreement between the parties as any particular type of contract. Nevertheless, the trial court held that no valid contract existed between the parties because Giroir lacked capacity to contract since; (1) Giroir did not prove he had authority to transfer property co-owned with his ex-wife, who may have been unaware of the contract; and (2) Giroir did not provide proof, aside from his own testimony, of the mortgage holder’s knowledge of and consent to the transfer of ownership of the property.

Under Louisiana Civil Code article 2347, the consent of both spouses is required for the alienation, encumbrance, or lease of community immovables, standing, cut, or fallen timber, furniture or furnishings while located in the family home, all or substantially all of the assets of a community enterprise, and movables issued or registered as provided by law in the names of the spouses jointly. When the concurrence of the spouses is required by law, the alienation, encumbrance, or lease of community property by a spouse is relatively null unless the other spouse has renounced the right to concur. La. Civ. Code art. 2353. Based on scant testimony that indicated only that Giroir was previously married, the trial court assumed that the property was community and that his ex-wife was unaware of the arrangement with Thomas. The appellate court determined that “it is unnecessary for us to determined whether the property was community such that Racquel Giroir’s concurrence would be required…; the trial court erred in voiding a contract based on a relative nullity on its own initiative.”

The trial court also found that there was no valid contract between the parties because there was no evidence that the mortgage holder consented to a transfer of ownership of the mortgaged property. The court noted that although Louisiana Revised Statutes section 9:2942 provides that it shall be unlawful to sell real property encumbered by a mortgage by bond for deed contract without first obtaining a written guarantee from the mortgage holder to release the property upon payment by the buyer of a stipulated mortgage release price, the statutorily-prescribed consequence of a violation by the seller in a bond for deed contract is a criminal penalty: a fine of not more than one thousand dollars or imprisonment for not more than six months, or both. La. Rev. Stat. § 9:2947. Wtihout determining whether the Agreement at issue herein was a bond for deed contract, we note that failure to comply with the Bond for Deed Act by obtaining the consent of the mortgage holder does not render a bond for deed contract absolutely null. Furthermore, the trial court cited no authority, and the court was aware of none, for the

16 proposition that a sale, lease, or innominate contract is absolutely null if a mortgagor agrees, without the consent of the mortgagee, to transfer ownership of the mortgaged property after the mortgage is satisfied. Of course, in such event the mortgagee may exercise any rights and remedies available to it under the mortgage.

Finally, the First Circuit went on to address the issue that the trial court did not reach: whether Giroir had the right to evict Thomas for failure to make timely payments under the contract. The Agreement provides that if Thomas becomes 90 days delinquent, Giori has the right to evict. From the very first month of the agreement, Thomas did not pay the entire amount due, and at no point did he make payments to cure the delinquency. He thereafter missed payments and paid insufficient amount on multiple occasions. By the time Giroir served Thomas with notice to vacate, Thomas should have made monthly payment totaling $4851.00; he had paid only $2200. He was more than 90 days delinquent. Regardless of how the transaction is characterized, Giroir had a right to regain possession of the property. The court therefore rendered judgment in favor of Giroir, granting possession of the property at issue, and remanding the matter to the trial court to set a reasonable time frame for Thomas to vacate the premises.

Furthermore, the court observed that according to the , the seller in a cancelled bond for deed contract is not entitled to retain all amounts paid by the purchaser, as this would represent an illegal attempt to recover punitive rather than compensatory damages. For the same public policy reasons, this rule applies to other types of , including innominate contracts. The purchaser is entitled to the return of all amounts paid on the purchase price, including the down payment and monthly installments, minus an allowance for the fair rental value of the property during the period of occupancy. Where the rental value cannot be determined form the record, a remand is appropriate. There is insufficient evidence in this record for the court to determine a fair rental value for Thomas’ use of the property; therefore, the court ordered the trial court on remand to also determine the amount, if any, which must be returned to Thomas, as well as any other remedies available to the parties.

Note: The court did not address the potential effect of Louisiana Revised Statutes section 9:2945, which sets forth the circumstances under which a bond for deed contract may be canceled upon a buyer’s failure to make payments in accordance with the parties agreement. According to that provision: “A. If the buyer under a bond for deed contract shall fail to make the payments in accordance with its terms and conditions, the seller, at his option, may have the bond for deed contract cancelled by proper registry in the conveyance records, provided he has first caused the escrow agent to serve notice upon the buyer, by registered or certified mail, return receipt requested, at his last known address, unless payment is made as provided in the bond for deed within forty-five days from the mailing date of the notice, the bond for deed shall be canceled. B. Where there is no mortgage or privilege existing upon the property, and the buyer shall be in default, the seller shall exercise the right of cancellation in the same manner. [Paragraph C is omitted.]”

2. Double NRJ Trucking, Inc. v. Johnson, 247 So. 3d 1125 (La. App. 5 Cir. 5/16/2018).

The plaintiff filed a Petition for Cancellation of Lease and Return of Vehicle and asserted that the defendant-lessee, Mr. Johnson, failed to make timely payments under the lease. According to

17 the plaintiff, Mr. Johnson was to make 192 payments under the contract. Mr. Johnson and his wife both testified at trial that they believed he was buying the truck and would pay in installments, then receive title after the full amount was paid. Mr. Johnson’s wife even obtained a bill of sale from the plaintiff in order to get insurance. Mr. Johnson believed he had made all payments required under the contract of sale. The trial court denied the petition for cancellation of the lease and return of the vehicle, finding that the parties had entered into an agreement for the sale of the truck. The court further determined that the “lease to own” agreement provided for 92 weekly payments, finding more credibly Mr. Johnson’s testimony that the parties agreed to 92 payments than the documents prepared by the defendant which “either fraudulently or erroneously reflected 192 weekly payments.” Plaintiff moved for a new trial; the motion was denied. Plaintiff thereafter appealed.

The Fifth Circuit first observed that the parties’ written agreement was “void for defect of form,” noting that because it lacked a signature of the buyer, it was “neither an authentic act nor an act under private signature.” The Fifth Circuit went on to determine that the trial court made two legal errors. First, the trial court’s judgment stated that “issues of fact exist at to the agreement of the parties.” Since the very purpose of trial is to decide the facts of a case, there should be no outstanding issues of fact following a full trial. Second, the court held that the trial court erred because its findings of fact of the district court were “unduly influenced by suspicions of fraud.” Fraud must be specifically pled and proven by a preponderance of the evidence. Absent any pleadings of fraud, the Fifth Circuit found that the district court erred in considering fraud and permitting it to influence its factual findings.

Because the appellate court found that the fact-finding process was interdicted by two legal errors, the court conducted a de novo review. The court concluded that although no valid written agreement existed between the parties, the evidence and testimony in the recorded demonstrated that the parties intended to enter into an oral agreement according to which Mr. Johnson would buy the truck from the seller for $70,000, for which he would make 92 equal payments at an annual interest rate of 20%. The court then turned to the issue of whether the contract was a sale or a lease. According to the court, “[a] contract by which a party binds himself to pay in installments a certain sum for the use of a thing, with the privilege of becoming owner thereof upon paying a further sum, for which he has not bound himself absolutely, is simply a lease with an option to purchase, and is not a sale.” In contrast, “[a]n alleged lease, in which at the end of the term the lessee is to become owner of the thing leased, in consideration of the rent to be paid, is in fact a sale translative of title of the property from its very inception.” The court held that here, there was no suggestion in the record that Mr. Johnson was required to pay a further sum after completion of the installment payments to become owner of the vehicle. In fact, the defendant himself testified that upon completion of the payments, he would sign the title over to Mr. Johnson. This was a sale.

E. Subsequent Purchaser Doctrine

1. Catahoula Lake Investments, LLC v. Hunt Oil Co., 23 So. 3d 585 (La. App. 3 Cir. 1/10/2018).

18 Plaintiff, Catahoula Lake Investments, LLC (Catahoula) filed suit against Defendants claiming that their operations on plaintiff’s property under mineral leases and a mineral servitude caused damage to the property. Defendants filed exceptions of no right of action, asserting that because all mineral operations had ceased prior to plaintiff’s purchase of the subject property, the subsequent purchaser doctrine prohibited plaintiff from recovering against defendants since plaintiff’s contract purchasing the property did not expressly pass the seller’s personal rights of action to plaintiff. The trial court granted the exception of no right of action in part as to the pre- acquisition damages claims made against defendants. The exceptions were denied as to plaintiff’s post-purchase claims for regulatory mediation. Both parties appealed.

Plaintiff asserted that the trial court erred in finding that the contract by which plaintiff obtained ownership of the property did not also transfer the seller’s personal rights to sue defendants to demand restitution for damages caused to the property prior to when plaintiff obtained ownership. Alternatively, the plaintiffs alleged that the obligations arising from a mineral servitude provide an independent basis for seeking damages form the servitude owners that are not subject to the limitations arising from the obligations established by the mineral leases.

Regarding the transfer of the seller’s rights, the parties disagreed as to the effects of a clause included in the original transfer of the property to plaintiff from its vendor, which provided in pertinent part: “Vendor expressly subrogates Vendee to all rights, claims, and causes of action Vendor may have arising from or relating to any hidden or latent defects in the Property.” This clause appeared in the previous transfer by which plaintiff’s vendor acquired the property and in the transfer from plaintiff’s vendor to plaintiff.

The trial court found that the application of the language to “any” right leads to absurd consequences, and that the lack of specificity did not indicate to third parties that the personal right to sue for environmental damage was transferred to the plaintiff’s vendor or later to the plaintiff. The court of appeal reversed. The court discussed the Louisiana Supreme Court’s decision in Eagle Pipe, which extended the application of the subsequent purchaser doctrine, which had previously been limited to overt and obvious damage to property, to hidden and latent defects in the property. Thus, the court viewed the inclusion of the terms “hidden or latent defects” as an intentional attempt by the parties to the contract to protect the purchaser of the property by transferring any rights the seller might have against a third party for “hidden or latent” damages to the property.

Furthermore, the court disagreed with the trial court’s rationale that the language in the statute was overbroad and would include the “destruction of structures” on the property or the “unauthorized cutting of timber” from the property, as these would have been open and obvious at the time those damages occurred and the rights of the seller to sue a third party for those damages would not have been passed on to the purchaser under this provision which was limited to “hidden or latent defects.” Thus, those types of damages are the very type of open and obvious damages for which the subsequent purchaser doctrine was crated. Therefore, the contract at issue operated to subrogate plaintiff to the seller’s personal rights to seek damages for all hidden, latent defects in the property caused by Defendants, and the trial court erred in granting the Defendants’ exception of no right of action.

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