APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH
OF JEFFERSON, STATE OF LOUISIANA NO. 752-537, DIVISION
"L" HONORABLE DONALD A. ROWAN, JR., JUDGE PRESIDING
COUNSEL FOR PLAINTIFF/APPELLANT, ZOZETTE MARIE REED WIFE
OF/AND BRYAN ADAM REED Somer G. Brown
COUNSEL FOR DEFENDANT/APPELLEE, KATHY MITCHELL WIFE OF/AND
MARK MITCHELL Scott M. Galante Salvador I. Bivalacqua Lauren
composed of Judges Robert A. Chaisson, Stephen J. Windhorst,
and John J. Molaison, Jr.
J. MOLAISON, JR. JUDGE
civil action for rescission, breach of warranty and fraud,
appellants, who purchased a home from the appellees, appeal a
judgment finding in favor of appellees following a trial on
the merits, as well as a subsequent award of costs to
appellees. For the reasons that follow, we affirm.
August 13, 2015, appellants, Zozette and Bryan Adam Reed
("the Reeds"), filed a petition alleging breach of
warranty and fraud by appellees, Kathy and Mark Mitchell
("the Mitchells"), related to the sale of the
Mitchells' home to the Reeds. An amended petition was
filed on April 22, 2016. A judge trial on the merits of this
matter was held on May 8, 2018. On that same date, the court
ruled in favor of appellees and dismissed appellants'
claims with prejudice. On July 31, 2018, the court awarded
appellees $11, 500 for reimbursement of costs. Appellants
thereafter sought the instant suspensive appeal, which was
granted on August 27, 2018.
record shows that, on or about January 10, 2015, the Reeds
contacted the Mitchells for the purpose of inquiring about
the Mitchells' home, located at 1009 Moss Lane, which was
for sale by owner in the River Ridge area of Jefferson
Parish. The Reeds subsequently made a verbal offer to
purchase the Mitchells' home, and the parties entered
into a written purchase agreement on January 11, 2015. Within
the inspection period that followed, the Reeds sought
information from the Mitchells regarding whether the home had
a history of flooding. In particular, the Reeds were
concerned about one feature of the home, a sunken den which
was constructed below grade, and whether that part of the
home was prone to flooding as well.
Reed testified that during the first visit to the home, the
Mitchells told her and her husband that "exterior
waterproofing" had been done because of "little
spots of water" that had appeared on the floor of the
sunken den in the past. The Reeds received a verbal
disclosure from the Mitchells prior to the sale, but did not
obtain a copy of the written disclosure until after the
sale. The information provided verbally and in
writing was consistent: the home had flooded in 1995, and
there had also been foundation repair/exterior waterproofing
done. The Reeds had an independent inspection done on the
home as well, but the inspection did not reveal that water
had entered into the sunken den.
of sale took place on February 26, 2015. Mrs. Reed testified
that flooding issues began in April of 2015, when the den
flooded after a heavy rainstorm. In trying to determine a
cause of the flooding, the Reeds looked through a folder of
information on the home that Mrs. Mitchell had given them,
and they located a 2011 document from Dixie Waterproofing
regarding interior work to the den that they were previously
unaware of. After the flooding, it was discovered that the
outlets in the den were rusted, indicating that water had
entered through the outlets at some point in the past.
making a claim on their flood insurance, the Reeds'
policy was canceled a week later when FEMA sent the insurer
notice of prior losses on the property. The new insurance
premium was $1, 300 more than the Reeds had been paying.
Along with the cancelation notice, the Reeds received a copy
of the home's flood history and learned that there had
been five flood claims paid on the house. The Mitchells had
only told them about the 1995 flood, which occurred after the
Mitchells originally purchased the home.
Reed thereafter went to Jefferson Parish's Repetitive
Loss Office and filed a public records request to learn the
full history of water intrusion at the house. From that
request, the Reeds learned about concrete that had been
poured on the property and that the Mitchells had applied for
an elevation grant to lift the home. To that point, the Reeds
had not been told that concrete was poured on the slab in
2000 in an attempt to stop water intrusion, and they had not
been told about an application for a FEMA grant.
second flooding event occurred in October of 2015, when water
came through the electrical outlets into the den. On July 22,
2016, the den flooded for the third time. The Reeds insurance
claim for the 2016 flood was denied. On August 5, 2017,
following a large storm, the den flooded a fourth time.
Damages from the 2017 flood were covered by FEMA.
Reeds put the house on the market in spring of 2017. In the
disclosure for the house, the Reeds incorporated the entire
flooding history they had learned.
time of trial, the Reeds had hired approximately 10
contractors and engineers to try to solve the flooding issue.
Estimates to stop the flooding ranged as high as $200, 000.
Mrs. Reed testified that she would not have purchased the
house if she had known all of the information that she had
learned after purchasing the house. Mrs. Reed indicated that
she wanted the Mitchells to take the house back.
cross examination, Mrs. Reed reviewed the property disclosure
and admitted that the house was sold to them without a
warranty from the Mitchells. Mrs. Reed stated that water
intrusion in the sunken den was discussed with the Mitchells
from her very first visit to the home. The Reeds were not
prohibited or limited in any way by the Mitchells from having
the home inspected prior to the sale. The Reeds' home
inspection report, which was received prior to the sale,
indicated that the home had subsurface drains and a
sump-pump, as well as a water proofing membrane.
Reed testified that initially he was not verbally advised by
the Mitchells about water intrusion issues. He stated that
after receiving the home inspection report, he asked the
Mitchells about the waterproofing membrane referenced in the
report, at which time they told him about the exterior work
that was done in 2011. Mr. Reed contended that the Mitchells
described the water intrusion in the sunken den as a minimal
amount that could be cleaned up with a towel. Over the course
of several conversations, the Mitchells told Mr. Reed that
the exterior waterproofing by Dixie Walls had stopped water
intrusion in the den. Mr. Reed said that the Mitchells did
not tell him about a terra cotta pipe under the house, floods
that had occurred prior to Mitchells' ownership, their
2009 or 2011 water intrusion claims, 1998 waterproofing work,
work in 2000 to add to the concrete slab in the sunken den,
2012 interior waterproofing by Mr. Charbonnet, or about their
application for a 2012 FEMA grant to elevate the house.
Mitchell testified that she and her husband decided to put
their house up for sale by owner. Shortly after listing the
home online she was contacted by Zozette Reed to set up an
appointment to view it, and the Reeds eventually made a total
of four visits before the sale. Mrs. Mitchell stated that
everything she told the Reeds verbally about water issues in
the house was ultimately put into the written disclosure.
This specifically included the 1995 flood as well as water
intrusion in the sunken den. Mrs. Mitchell recalled that her
husband gave Mr. Reed the FEMA document, as well as
information about the 2009 and 2011 claims made for water
intrusion. She personally told the Reeds about the steps that
were taken to address the water intrusion issues in the den,
and testified that she believed the water intrusion problem
was resolved in 2012 after Peter Charbonnet installed an
exterior waterproof membrane around the home. She stated that
she had never seen water come through the electrical outlets
as the Reeds had described. With respect to the FEMA grant to
have the house raised, Mrs. Mitchell stated that she made the
application because the program was available for anyone to
use and many people were taking advantage of the opportunity.
Mrs. Mitchell admitted that she did not provide information
to the Reeds about flooding that occurred prior to the time
that the Mitchells owned the house.
being recalled as a witness by the defense, Mrs. Mitchell
clarified that she was never a real estate agent at the firm
where she worked, but was only a receptionist who also sent
out marketing materials. She emphasized that she told the
Reeds about the flood of 1995, as well as the small water
intrusions in the den, which the Mitchells hired Dixie to
repair. Mrs. Mitchell showed the Reeds the document from
Dixie that ...