Court: Louisiana Court of Appeal; January 20, 1987; Louisiana; State Appellate Court
Plaintiffs appealed a trial court ruling that sustained exceptions of prescription in their tort and redhibition suit regarding termite infestation in a home purchased from Mr. and Mrs. Carl Moore, with assistance from Century 21-Roberts Realty and agent Barbara Carter. The plaintiffs alleged negligence against Claude Davidson of Davidson Exterminating Service, who performed the termite inspection prior to their purchase. The trial court issued a “ruling on exceptions” but did not sign a final judgment regarding Mr. and Mrs. Moore, thus that aspect is not before the appellate court. A final judgment was, however, signed dismissing the plaintiffs’ claims against Davidson for redhibition, while determining the tort claim had not prescribed.
The facts reveal that the Moores engaged real estate assistance to sell their home, and the Tillmans executed a purchase contract in December 1982, requiring a termite inspection for financing. Davidson inspected the home on February 17, 1983, issuing a certificate stating no termites were found. The sale closed on February 28, 1983, and the Tillmans moved in shortly after, discovering termites on March 27, 1983. Subsequent inspections by other exterminators confirmed the presence of termites, leading the Tillmans to file suit against Davidson for negligence on March 26, 1984, after their attorney withdrew from the case.
In April 1984, plaintiffs secured new legal representation and subsequently filed a "First Amending and Supplemental Petition" on June 14, 1985, which reasserted their original negligence claim and introduced a redhibition claim against defendant Davidson while adding Mr. and Mrs. Carl Moore, Century 21-Roberts Realty, and agent Barbara Carter as co-defendants. Following this filing, exceptions of prescription were raised by the Moores and Davidson regarding the new allegations. A hearing on these exceptions occurred on March 3, 1986, leading the trial judge to sustain the exceptions and dismiss the redhibition claim against these defendants on March 6, 1986. The plaintiffs appealed this decision, but the court noted that there was no signed judgment regarding the Moores, thus jurisdiction over that aspect was lacking.
The court's review was limited to the claims against Davidson, determining that plaintiffs failed to establish a viable cause of action in redhibition. It was found that Davidson, hired by the Moores’ realtor and paid by them, inspected the property and falsely certified it as free of termite infestation, a fact relied upon by the plaintiffs when purchasing the home. However, as Davidson was not a seller, the legal basis for a redhibition claim was absent. The court referenced precedents indicating that redhibition actions must be founded on a seller-vendor relationship, affirming the exception of no cause of action against Davidson.
The action centers on the seller's warranty obligation, with the court noting that the savings and loan institutions were not parties to the sales agreement, which precluded any privity between them and the plaintiffs. Citing Kearney v. Maloney, it was established that a real estate agent and a lender cannot be sued under redhibition laws without a vendor-vendee relationship. Consequently, the Tillmans’ petition did not establish a cause of action in redhibition against Davidson, leading to its dismissal.
Regarding negligence, the Tillmans asserted a valid claim against Davidson for negligently conducting a termite inspection. The statute of limitations for such delictual actions is one year, starting from when the injury is sustained. The Tillmans became aware of the termite infestation on March 27, 1983, and filed their suit against Davidson on March 26, 1984, making it timely.
The court held that: 1) it lacked jurisdiction to assess the redhibition claim against the Moores due to insufficient records; 2) the petition failed to state a cause of action against Davidson for redhibition; 3) the negligence claim against Davidson had not prescribed. Accordingly, the appeal against the Moores was dismissed, while the judgment regarding Davidson was amended to overrule the prescription exception related to the tort claim. The redhibition claim against Davidson was dismissed, and the case was remanded for further proceedings. Costs of the appeal were to be shared equally between plaintiffs and defendants. Following a trial court judgment on April 1, 1986, which allowed the Tillmans to amend their petition, their amended petition is now considered final.
