APPLICATION FOR SUPERVISORY REVIEW FROM THE TWENTY-FOURTH
JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF
LOUISIANA NO. 720-048, DIVISION "G" HONORABLE E.
ADRIAN ADAMS, JUDGE PRESIDING
COUNSEL FOR PLAINTIFF/RESPONDENT, NANCY WILLIAMS, WIFE OF/AND
FRANCO VALOBRA Joseph R. Ward, Jr.
COUNSEL FOR DEFENDANT/RELATOR, ROBERT ALLAN NELSON AND JEROME
GARFIELD SMITH, III AS CO-TR USTEES OF THE ALLAN R. &
LOUISE S. NELSON REVOCABLE TRUST & THE ALLAN R. NELSON
MARITAL TRUST (TRUSTS) David F. Waguespack
CURIAE, LOUISIANA REALTORS Patricia B. McMurray Alexander M.
composed of Judges Jude G. Gravois, Robert A. Chaisson, and
Hans J. Liljeberg.
J. LILJEBERG JUDGE.
Robert Allan Nelson and Jerome Garfield Smith, III, as
co-trustees of the Allan R. & Louise S. Nelson Revocable
Trust and The Allan R. Nelson Marital Trust
("Trustees") filed an application for supervisory
writs seeking reversal of the trial court's denial of
their motion for summary judgment. After reviewing the writ
application, this Court allowed the parties the opportunity
to present oral argument and to submit additional briefing to
this Court in accordance with La. C.C.P. art.
966(H). For the following reasons, we reverse the
trial court's judgment denying the summary judgment
motion, grant the Trustees' motion and dismiss all claims
alleged against the Trustees by respondents/plaintiffs, Nancy
Williams and Franco Valobra, with prejudice.
AND PROCEDURAL BACKGROUND
matter involves plaintiffs' purchase of a residence
located at 415 Vincent Avenue in Metairie, Louisiana from the
Trustees for $1, 400, 000.00 (the "Property"). When
they initially listed the Property for sale in February 2012,
the Trustees each executed a document entitled "Property
Disclosure Document for Residential Real Estate"
("Property Disclosure") attesting to the condition
of the Property. The form required them to indicate
"yes," "no" or "no knowledge"
for each question regarding whether defects existed in
specific parts of the Property listed on the form. The
Trustees checked the "no" boxes for most inquiries
relating to existing defects. They answered "yes"
to Questions 5 and 12 regarding whether the property
experienced flooding, water intrusion, accumulation or
drainage problems. The Trustees disclosed that the Property
experienced flooding during Hurricane Katrina and also during
the May 8, 1995 flood due to a blocked drain. They answered
"yes" in response to Questions 7, 8 and 9 regarding
termite damage and disclosed that the Property previously
experienced termite damage, which was repaired. The Trustees
attested that the statements and explanations provided were
true and correct to the best of their knowledge.
February 27, 2012, plaintiffs signed an Agreement to Buy
offering to purchase the Property, subject to inspections.
The Agreement to Buy warned of the consequences of the
failure to obtain inspections and notify the sellers of
deficiencies and desired remedies:
FAILURE TO MAKE INSPECTIONS OR TO GIVE WRITTEN NOTICE OF
DEFICIENCIES AND DESIRED REMEDIES TO SELLER (OR SELLER'S
DESIGNATED AGENT) AS SET FORTH IN LINES 141 THROUGH 155
WITHIN THE INSPECTION PERIOD SHALL BE DEEMED AS ACCEPTANCE BY
BUYER OF THE PROPERTY'S CURRENT CONDITION.
also signed an addendum to the Agreement to Buy explaining
the Property would be sold without any warranties and
acknowledging that they did not rely on any statements or
representations made by the Trustees:
It is expressly agreed that immovable property herein
conveyed and all improvements and compound parts, plumbing,
electrical systems, mechanical equipment, heating and air
conditioning systems, built-in-appliances, and all other
items located hereon are conveyed by Seller and accepted by
Purchaser "As Is, Where Is," without any warranties
of any kind whatsoever, even as to the metes and bounds,
zoning, operation, suitability of such properties for the use
intended by the Purchaser, without regard to the presence of
apparent or hidden defects and with the Purchaser's full
and complete waiver of any and all rights for the return of
all or any part of the purchase price by reason of any such
Purchaser acknowledges and declares that neither the Seller
nor any party, whomsoever, acting or purporting to act in any
capacity whatsoever on behalf of the Seller has made any
direct, indirect, explicit or implicit statement,
representation or declaration, whether by written or oral
statement or otherwise, and upon which Purchaser has relied,
concerning the existence or non-existence of any quality,
characteristic or condition of the property herein conveyed.
Purchaser has had full, complete and unlimited access to the
property herein conveyed for all tests and inspections which
Purchaser, in Purchaser's sole discretion deems
sufficiently diligent for the protection of Purchaser's
Purchaser expressly waives the warranty of fitness and the
warranty against redhibitory vices and defects, whether
apparent or latent, imposed by Louisiana Civil Code Articles
2520 through 2548, inclusive, and any other applicable state
or federal law and the jurisprudence thereunder.
the parties reached an agreement on the purchase price,
plaintiffs obtained a home inspection, a swimming pool
inspection and a termite inspection. On March 9, 2012,
plaintiffs submitted a "Property Inspection
Response," which included written reports regarding the
home, swimming pool and termite inspections. The reports
noted the following issues with the Property:
1) Air Conditioning System: The report noted organic growth
at vents and pan holding water "which may indicate an AC
problem." The inspector recommended an evaluation by a
qualified licensed contractor.
2) Roof: The report noted a damaged or missing shingle and
staining in the attic and stains/damage on the front wall in
the rear addition. The report noted the inspector was unable
to access the front roof and was unable to determine if
active leaks existed. The inspector suggested that the
plaintiffs inquire with the seller about "the history of
leaks" and recommended evaluation by a qualified
3) Moisture: The report noted moisture stains/damage at the
right rear french door and door trim and a courtyard french
door trim. The inspector recommended an evaluation by a
qualified licensed contractor. The report also noted moisture
stains/damage at the right side of the laundry and noted with
respect to the patio, "surface raised/settled."
4) Termites: The report noted unusual spots in the upstairs
hall linen closet and further stated they were unable to
determine if they were caused by wood destroying insects.
5) Pool: The report noted the pool was cloudy and had signs
of aging. It also noted certain equipment needed to be
repaired or replaced.
6) Second Floor: The report noted that a door was difficult
to close and that may be indicative of structural movement.
The report also noted significant cracking at the moldings in
the rear addition and front left bedroom.
home inspection report also stated that the subsurface drains
were not tested and were not part of the home inspection
report. In the Property Inspection Response, plaintiffs noted
a defect with the exterior foundation and requested that the
Trustees repair and correct moisture damage, including
moisture-damaged doors. Plaintiffs requested that the
Trustees make recommended repairs to the roofing and flashing
system. Plaintiffs also made requests that the Trustees
service and repair the air conditioning system and make
recommended repairs for electrical, kitchen, appliance,
laundry and pool issues. The parties engaged in further
negotiations and the Trustees agreed that, in lieu of any
other repairs, the Trustees would repair a leaking gas line
in the pool area and replace missing roof shingles. They also
agreed to include a dining room chandelier in the sale and to
pay $5, 000 of plaintiffs' closing costs.
April 25, 2012, the Trustees conveyed the Property to
plaintiffs by a Cash Sale of Property with a waiver of
Without limiting the generality of the foregoing, the
property is being sold "AS-IS, WHERE-IS," without
any warranties or representations whatsoever, express or
implied, including, without limitation, any warranty or
representation with respect to the condition of the property
of any of its components, parts or contents or with respect
to fitness or suitability of the property or any of its
components, parts or contents for Purchasers' intended
use or any other particular use, purpose or condition.
Purchasers' specifically waive all claims and all causes
or rights of action which Purchasers have or may have against
Vendors with respect to the property including any and all
claims that it may have to rescind or resolve the sale
effected thereby or to demand a reduction, set off or
diminution of the purchase price or any part thereof based
upon the existence of any redhibitory or other vices or
defects. Purchasers further waive any claims that Purchasers
have or may have in "quanti minoris" or for
reduction of the purchase price paid therein, or any other
rights provided in Louisiana Civil Code Articles 2520 through
This property is being sold in "as is" condition
with waiver of redhibition in accordance with Louisiana Civil
Code Articles 2520, et seq.
allege that after the sale, they began renovations to the
Property and discovered it contained numerous hidden defects.
Plaintiffs' counsel allegedly sent correspondence to the
Trustees outlining the alleged defects and asking the
Trustees to pay to repair the defects. On September 4, 2012,
the Trustees' counsel responded by noting that plaintiffs
acknowledged in their letter that they only discovered the
alleged defects after they began renovations and were not
able to detect the alleged defects through inspections.
Defense counsel stated that Ms. Louise Nelson, who previously
resided in the Property, was not in a position to know of the
alleged defects in the attic and roof, and further stated the
Trustees had no knowledge of alleged defects that were not
listed on the Property Disclosure.
October 12, 2012, plaintiffs filed a petition for damages
against the Trustees. Plaintiffs claimed that based on the
statements in defense counsel's September 4, 2012
correspondence, the Trustees defrauded them by providing
inaccurate disclosures on the Property Disclosure.
Specifically, plaintiffs alleged the Trustees committed fraud
by checking the "no" box rather than the "no
knowledge" box on the Property Disclosure when
responding as to whether certain features of the Property
contained defects. Plaintiffs contend these responses were
fraudulent because the Trustees admitted in the September 4,
2012 correspondence that they possessed no knowledge as to
whether the property contained defects. Plaintiffs alleged
that if the Trustees disclosed they did not have knowledge
regarding the condition of the Property, they would have
obtained more comprehensive ...