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Riedel v. Fenasci

Court of Appeals of Louisiana, First Circuit

December 28, 2018

DEBORAH RIEDEL, INDIVIDUALLY, AND ON BEHALF OF HER MINOR CHILDREN, RACHEL RIEDEL AND JEREMY CANZONERI
v.
ANGIE FENASCI, HOLLIE REALTY, L.L.C./REMAX NORTHSHORE, FRANK CALI, THERESA CALI, LANDON YARBOROUGH, COLDWELL BANKER BOBBY TALLO REALTY, ABC INSURANCE COMPANY, DEF INSURANCE COMPANY, GHI INSURANCE COMPANY, JKL INSURANCE COMPANY, MNO INSURANCE COMPANY, AND POR INSURANCE COMPANY

          Appealed from the Twenty-First Judicial District Court In and for the Parish of Tangipahoa, State of Louisiana Docket Number 2015-0001349 Honorable Jeffrey S. Johnson, Judge Presiding

          James E. Shields, Sr. Gretna, LA Counsel for Plaintiffs/ Appellants, Deborah Riedel, Individually, and on behalf of her Minor Children, Rachel Riedel and Jeremy Canzoneri

          John E. McAuliffe, Jr. Metairie, LA Counsel for Intervenor/ Appellee, State Farm Fire and Casualty Company

          Samuel P. Baumgartner Covington, LA Counsel for Defendants/Appellees, Frank Cali and Theresa Cali

          John I. Feduccia Hammond, LA Counsel for Defendants/Plaintiffs-in- Reconvention/ Appellees, Frank Cali and Theresa Cali

          Gary J. Giepert Jonathan S. Giepert New Orleans, LA Counsel for Defendants/ Appellees, Angie Fenasci and Hollie Realty

          Michael P. Bienvenu Baton Rouge, LA Counsel for Defendants/ Appellees, Landon Yarborough and Bobby Tallo Realty

          BEFORE: WHIPPLE, C.J., McCLENDON, AND HIGGINBOTHAM, JJ.

          WHIPPLE, C.J.

         This matter is before us on appeal by plaintiff, Deborah Riedel, individually, and on behalf of her minor children, Rachel Riedel and Jeremy Canzoneri, (collectively referred to as "Riedel") from a judgment of the trial court granting summary judgment in favor of defendants, Frank and Theresa Cali, and dismissing Riedel's claims against them with prejudice. For the reasons that follow, we recall the show cause order and affirm the judgment of the trial court.

         FACTS AND PROCEDURAL HISTORY

         In 2014, Riedel sought the assistance of Angie Fenasci, a real estate agent employed by Hollie Realty, L.L.C./RE/MAX Northshore, in locating and purchasing a home. Their search led to a condominium located at 2700 Rue St. Martin, Unit A, in Hammond, Louisiana, that was owned by Frank and Theresa Cali. Although Frank Cali was a real estate agent by trade, the Calis listed the unit for sale through Landon Yarborough, who is the nephew of Theresa Cali and a licensed real estate agent for Coldwell Banker/Bobby Tallo Realty. Yarborough had lived in the condominium for approximately a year prior to its sale. The Calis granted Yarborough a specific power of attorney to execute all documents necessary to sell the condominium.

         On April 25, 2014, the parties entered into a purchase agreement, which provided that the sale was "as is" without any warranties and that the buyer waived and released the seller from any claims of redhibition. Riedel also completed an "Owner Finance Application" to secure potential financing for her purchase of the property.

         A few days later, on April 28, 2014, Riedel, through her agent, Fenasci, commissioned a pre-sale home inspection of the property by Dale Brunet of Brunet's Home Inspection, LLC, which was conducted on April 30, 2014. Following the inspection, Brunet issued a report on May 1, 2014, containing a list of thirty-three discrepancies found during the inspection.[1] Based on the findings noted in Brunet's report, on May 2, 2014, Riedel executed a "PROPERTY INSPECTION RESPONSE" form, citing the deficient conditions and stating her desired remedy by the seller, as follows:

Cover on AC condenser is off - Cover needs to be properly installed Shower head on master bath is leaking - replace shower head preferably with a hand held Tub in master bath is leaking and needs caulking - Have tub caulked to prevent leaking Toilet in [m]aster bath does not flush - Have toilet in proper working order

         Yarborough executed the response form on May 3, 2014, indicating that the sellers would have all deficiencies corrected no later than five calendar days prior to the act of sale. On May 4, 2014, Riedel executed a final response form, indicating that she accepted the seller's response and would proceed toward act of sale.

         The closing was scheduled for May 9, 2014. At that time, Riedel signed a "Final Inspection Release" advising that a reinspection of the property had been performed and that the property was in the same or better condition as it was at the time of the initial inspection, that reinspection of the property revealed that the deficiencies previously cited in the "Property Inspection Response" form had been satisfactorily corrected, and that the condition of the property was acceptable.

         Thereafter, Riedel also executed a "Note" and "Credit Deed" through which she purchased the property from the Calis for the sum of $67,500.00. Riedel placed a down payment of $25,000.00 and financed the balance of $42,500.00 with the Calis with 6.75% interest until paid in full via an owner-financed promissory note. Under the terms of the note, Riedel was to make 240 equal monthly installments of $323.15 each commencing June 1, 2014, and on the same day of each month thereafter until paid.

         Similar to the purchase agreement, the credit deed also contained an "AS IS/WHERE IS" clause, whereby the buyer and seller "expressly agreed" to certain waivers. The clause was specifically initialed by both the buyer and seller and provided as follows:

It is expressly agreed that all of the movable or immovable property herein conveyed and all improvements and component pails, plumbing, electrical systems, mechanical equipment, heating and air conditioning systems and all of the 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, operations, rules, regulations, and/or ordinances of any kind, type, or nature of local, Parish, State and/or Federal entities or suitability of such properties for the use intended by Purchasers, 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 defects. Purchasers acknowledge and declare that neither the [S]eller 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 statements, representation or declaration, whether by written or oral statement or otherwise, and upon which Purchasers have relied, concerning the existence or nonexistence of any quality, characteristic or condition of the property herein conveyed. Purchasers have 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 interests. Purchasers 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 and 2548, inclusive, and any other applicable State and Federal Law and the jurisprudence thereunder. Purchaser also waives any rights Purchaser may have in redhibition or to a reduction of the purchase price pursuant to Louisiana Civil Code Articles 2520 and 2548, inclusive, in connection with the property hereby conveyed to Purchaser by Seller. By Purchaser's signature, Purchaser expressly acknowledges all such waivers, and Purchaser's exercise of Purchaser's right to waive warranty pursuant to Louisiana Civil Code Articles 2520 through 2548, inclusive.

         Riedel contends that after moving into the home, she detected moisture and smelled a "strong odor" that worsened each day and that she and her children "began feeling very ill and developed illnesses." Riedel further averred that she requested a copy of Brunet's home inspection report because she "wanted to see what the inspection report stated," which Fenasci subsequently produced.

         On July 16, 2014, Riedel filed a claim with State Farm Fire and Casualty Company ("State Farm"), her homeowner's insurance carrier, seeking to recover for mold and moisture damage to the condominium. After conducting an inspection on August 7, 2014, State Farm advised Riedel by letter dated September 10, 2014 that a supply line from the second floor bathroom showerhead had been leaking and caused water damage to the first floor kitchen ceiling. State Farm thus denied the claim, noting that the "damages in the kitchen showed evidence of long-term damage, rot, [and] deterioration" and further cited provisions of her policy that excluded coverage for losses due to or remediation of "fungus."[2]

         Riedel then hired Colonial Inspection Services to conduct a mold inspection of the property. The inspection was conducted on October 30, 2014, and a report accompanied by a certificate of mold analysis was subsequently issued, finding there was suspected visible mold in the home.

         On May 6, 2015, Riedel individually, and on behalf of her minor children, filed a petition for damages against Fenasci, Hollie Realty, L.L.C./RE/MAX Northshore, the Calls, Yarborough, and Coldwell Banker Bobby Tallo Realty, L.L.C, asserting claims of fraud and misrepresentation and contending that they "had to have known" about the moisture and mold in the home before it was sold. Riedel asserted breach of fiduciary duty claims against Frank Cali, Landon Yarborough, and Angie Fenasci as licensed agents and breach of contract claims and "re-habitation violations" against Frank and Theresa Cali as owners of the property. Therein, Riedel sought damages for illnesses and injuries that she and her children suffered purportedly as a result of exposure to "black mold" found in the home. Riedel further averred that her condition is "permanent and irreversible."[3]

         The Calis answered the petition and subsequently filed a reconventional demand against Riedel, as holders of the May 9, 2014 promissory note, averring that Riedel had not made any payments on the promissory note since her payment in December of 2014, and had further defaulted on payment of ad valorem taxes imposed on the property by the Parish of Tangipahoa and the City of Hammond. The Calls thus sought judgment in their favor condemning Riedel to pay them the sum of $41,862.34 plus interest at 6.75% per annum until paid, together with an additional sum for late charges, reimbursement of ad valorem taxes paid by the Calis, and 25% of that amount as attorney's fees and costs.

         On June 14, 2017, the Calis filed a motion for summary judgment seeking dismissal of Riedel's claims against them asserted in her main demand, contending that Riedel could submit no competent evidence to substantiate the allegations in her petition that the mold existed in the condominium on or before the date of the sale, that Frank or Theresa Cali knew or should have known of any alleged mold in the condominium on or before the date of sale, nor any evidence that would establish medical causation for any of Riedel's alleged injuries or medical conditions as being related to alleged mold exposure.

         Thereafter, Fenasci and Hollie Realty, L.L.C. also filed a motion for summary judgment seeking dismissal of Riedel's claims against them. The Calis, as plaintiffs-in-reconvention, also filed a motion for summary judgment seeking judgment in their favor on the claims asserted against Riedel in their reconventional demand.

         All three motions for summary judgment were heard before the trial court on August 28, 2017. At the conclusion of the hearing, the trial court found that no facts had been presented or showing made to indicate that Frank or Theresa Cali and Fenasci had any knowledge that mold was present at or before the time of sale and that no evidence had been submitted to show medical causation. The trial court thus granted the motions for summary judgment brought by defendants, Frank and Theresa Cali, Fenasci, and Hollie Realty, L.L.C. The trial court further granted the motion for summary judgment by Frank and ...


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