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Radlauer v. Curtis

Court of Appeals of Louisiana, Fourth Circuit

August 14, 2019

LEONARD A. RADLAUER
v.
REMAX AND PAT CURTIS

          APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2006-11090, DIVISION "D" Honorable Nakisha Ervin-Knott, JUDGE

          John M. Robin Zachary D. Rhodes Catherine M. Robin LAW OFFICE OF JOHN M. ROBIN COUNSEL FOR PLAINTIFF/APPELLANT

          Timothy S. Madden Diana J. Masters KING & JURGENS, LLC COUNSEL FOR DEFENDANT/APPELLEE

          Court composed of Judge Edwin A. Lombard, Judge Joy Cossich Lobrano, Judge Sandra Cabrina Jenkins

          Edwin A. Lombard, Judge

         The Appellant, Sally Owens Radlauer, [1] seeks review of the January 2, 2019 judgment of the district court granting the motion for summary judgment of the Appellee, Dr. Stephen Brint. Pursuant to our de novo review, we affirm the judgment of the district court, finding that Dr. Brint established that there was no genuine issue of material fact as to whether a redhibitory defect existed on the Property at issue.

         FACTS AND PROCEDURAL HISTORY

         In 1999, Dr. Brint purchased 34 Nassau Dr. ("the Property) in Jefferson Parish from Carl J. Eberts. At the Act of Sale in September 1999, Mr. Eberts executed a property disclosure statement ("the 1999 Property Disclosure") which stated that the Property sustained a "small amount of water seepage" in May 1995. Dr. Brint signed the 1999 Property Disclosure as well, thereby acknowledging that he was informed of the details therein.

         In 2004, Mr. and Mrs. Radlauer, represented by ReMax real estate agent, Pat Curtis, made an offer to Dr. Brint to purchase the Property. Dr. Brint was represented in the real estate negotiations by agent Peggy Hepting. On August 15, 2004, the Radlauers and Dr. Brint executed an "Agreement to Purchase or Sell" the Property.

         Prior to the Act of Sale, Mr. Radlauer inquired of Ms. Curtis whether the Property had ever flooded because he was aware that other homes in the same neighborhood sustained water damage. Mr. Radlauer testified[2] that Ms. Curtis informed him, before the Act of Sale, that the Property had no history of flooding.

         It is contested between the parties whether Dr. Brint provided the Radlauers with the 1999 Property Disclosure and thereby disclosed the 1995 water seepage prior to the Act of Sale. Dr. Brint and agents Hepting and Curtis testified that Ms. Hepting provided the 1999 Disclosure to Ms. Curtis. Ms. Curtis testified that she provided the form to the Radlauers, which Mrs. Radlauer denies and Mr. Radlauer denied in his testimony.

         The Act of Sale occurred on November 15, 2004. Two documents were executed at the sale: a Property Disclosure (2004 Property Disclosure) and an "As Is Clause" addendum. In the 2004 Property Disclosure, Dr. Brint checked "no" in response to question 4, "Has any flooding . . . been experienced with respect to the land?" Dr. Brint testified that he completed the 2004 Property Disclosure form himself, based upon his experience with the Property.[3]

         Moreover, the "As Is" addendum included a waiver of redhibition stating that the Radlauers were not relying upon "any representations, statements or warranties" made by Dr. Brint or his agents regarding the condition of the Property. The sale occurred approximately 9 months before Hurricane Katrina. The Property sustained flood damage as a result of Hurricane Katrina.

         Procedural History

         In 2006, Mr. Radlauer filed suit against Ms. Curtis[4] and ReMax. Mr. Radlauer thereafter filed five supplemental and amending petitions. Dr. Brint was added as a defendant in Mr. Radlauer's First Supplemental and Amending Petition dated August 28, 2006, wherein Mr. Radlauer raised claims of redhibition and sought rescission of the sale and return of the purchase price.[5]

         On August 29, 2007, in a separate proceeding in the 24th Judicial District Court of Jefferson Parish, Regions Bank filed "Suit to Enforce Mortgage by Ordinary Process" against the Radlauers, and a judgment of foreclosure was rendered on or about March 25, 2008. The Property was later sold at Sheriff's sale. Thereafter, the parties in the instant matter filed cross motions for summary judgment, which were denied by the district court on June 12, 2009. Dr. Brint later re-urged his motion for summary judgment in June 2010; however, it was continued until he re-urged it again on September 18, 2018.[6] In his motion for summary judgment and supplemental memorandum in support thereof, Dr. Brint raised five arguments:

1. Mr. Radlauer was made aware of the fact that the property at issue experienced a small amount of water seepage in May 1995. Notwithstanding this knowledge, Mr. Radlauer still decided to purchase the subject property;
2. Dr. Brint did not mislead Mr. Radlauer in any way; rather, he properly disclosed all facts within his knowledge regarding the property prior to ...

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