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Murray v. Bostwick

Court of Appeals of Louisiana, Second Circuit

August 14, 2019

RICHARD MURRAY AND HEATHER DUKES WARD MURRAY Plaintiffs-Appellants
v.
TERRILL CLARK BOSTWICK AND DEBORAH KAY REED BOSTWICK Defendants-Appellees

          Appealed from the First Judicial District Court for the Parish of Caddo, Louisiana Trial Court No. 599, 188 Honorable Craig O. Marcotte, Judge.

          SHUEY SMITH, LLC By: Richard E. Hiller Counsel for Appellants

          DAVID L. WHITE Counsel for Appellees

          Before COX, STEPHENS, and THOMPSON, JJ.

          THOMPSON, J.

         This matter arises from the purchase and sale of a residence which Plaintiffs, Richard and Heather Murray ("The Murrays"), assert contained defects which were concealed or not disclosed by Defendants, Terrill and Deborah Bostwick ("The Bostwicks"). Plaintiffs appeal from the trial court's judgment in favor of Defendants in which the court found that Plaintiffs failed to meet their burden of proof to establish: (1) that there was a willful misrepresentation of the truth in order to gain an advantage; (2) the elements of detrimental reliance; and (3) fraud. For the following reasons, we affirm the trial court's judgment.

         FACTS AND PROCEDURAL HISTORY

         In 2012, the Bostwicks placed their house on the market to sell through realtor Chuck Horne. On August 12, 2012, the Bostwicks filled out a Property Disclosure Statement ("the Statement") with the assistance of Mr. Horne. On May 10, 2013, the Murrays and Bostwicks entered in a Louisiana Residential Agreement to Buy or Sell ("the Agreement"). After two counteroffers, the parties agreed upon the purchase conditions, which included the condition that a home inspection be completed prior to closing the sale and that the sale would include a waiver of redhibition. Both parties signed page six (6) of the Agreement, which included an explanation that the home would be sold without any warranties in "as is" condition:

SELLER and BUYER hereby acknowledge and recognize that the Property being sold and purchased is to be transferred in "as is" condition and further BUYER does hereby waive, relieve and release SELLER from any claims or causes of action for redhibition pursuant to Louisiana Civil Code Article 2520, et seq. and Article 2541, et seq. or for reduction of Sale Price pursuant to Louisiana Civil Code Article 2541, et seq.
Additionally, BUYER acknowledges that this sale is made without warranty of fitness for ordinary or particular use pursuant to Louisiana Civil Code Article 2524. SELLER and BUYER agree that this clause shall be made a part of the Act of Sale.

         On May 31, 2013, American Dream Home Inspection Service issued an inspection report on the subject property. There were no issues noted on the inspection report with regard to pinhole leaks or improper grade of copper piping. On July 11, 2013, the parties executed a Cash Sale Deed ("the Deed") which also expressly stated that the home would be sold without warranties:

It is expressly agreed that the immovable property herein conveyed and all improvements and component parts, plumbing, electrical systems, mechanical equipment, heating and air conditioning systems, built-in appliances, and all other items located thereon are conveyed by Seller and accepted by Buyer "AS IS, WHERE IS," without any warranties of any kind whatsoever, even as to the meets and bounds, zoning, operation, or suitability of the property for the use intended by the Buyer, without regard to the presence of apparent or hidden defects and with the Buyer'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. Buyer 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 the Buyer has relied, concerning the existence or non-existence of any quality, characteristic or condition of the property herein conveyed. Buyer has had, complete and unlimited access to the property herein conveyed for all tests and inspection which Buyer, in Buyer's sole discretion, deems sufficiently diligent for the protection of Buyer's interests. Buyer 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 (emphasis added).

         After moving into the home, the Murrays began to experience pinhole leaks in the pipes of the house. The Murrays hired plumbers and construction companies to fix the damage caused by each of the leaks. In June 2016, the Murrays contacted Robert Brown Plumbing to complete an inspection of the pipes to determine the cause of the pinhole leaks. According to Mr. Brown, the wrong copper piping was installed in the house, and this was at least part of the cause of the pinhole leaks. It was the opinion of Mr. Brown that the only way to fix the pinhole leak problem was to replace all of the copper piping in the house.

         On March 9, 2017, the Murrays filed suit against the Bostwicks claiming breach of contract, fraud, and detrimental reliance. This case was tried on July 31 and September 18, 2018. The trial court issued its written ruling on September 28, 2018, finding that the Murrays had failed to carry their burden of proof to establish: (1) that there was a willful misrepresentation of the truth in order to gain an advantage; (2) the elements of ...


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