270 So. 3d 795
La. Ct. App.2018Background
- Deborah Riedel purchased a Hammond, LA condominium in May 2014 with the assistance of real estate agent Angela Fenasci (employed by Hollie Realty).
- The parties executed a purchase agreement containing an "As Is"/no-warranty clause; a home inspection was performed April 30, 2014 by Brunet, who listed visible moisture-related discrepancies and attached photos.
- Fenasci attended the inspection, received Brunet’s written report on May 1, 2014, and forwarded it by email to Riedel that same day; Riedel signed a Property Inspection Response May 2 and an Act of Sale/Final Inspection Release at closing.
- After closing, Riedel discovered mold and water damage; insurer and later mold inspection identified issues months post-closing.
- Riedel sued Fenasci and Hollie Realty alleging fraud, negligent misrepresentation, failure to disclose, breach of contract, and redhibition based on alleged concealment of moisture/mold.
- Trial court granted summary judgment for defendants (Nov. 6, 2017); appeal was filed and the appellate court affirmed the summary judgment and maintained the appeal despite a procedural filing date error.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Fenasci had duty/liability for nondisclosure or misrepresentation about moisture/mold | Riedel: Fenasci knew or should have known of moisture and mold and misrepresented that the inspector found nothing | Fenasci: No knowledge of mold; forwarded inspection report; defects were visible and discoverable; inspector found no mold | Held: No evidence Fenasci knew of hidden mold; summary judgment for defendants affirmed |
| Whether plaintiff can recover for defects discoverable by simple inspection after buyer inspected pre-sale | Riedel: Defects were concealed / not discoverable | Fenasci: Discrepancies were visible in inspection report/photos and on walk-throughs; buyer inspected and requested repairs | Held: Defects discoverable on simple inspection bar fraud/negligent misrepresentation claims |
| Whether the inspector’s later discovery of mold (Oct 2014) proves pre-sale knowledge | Riedel: Post-closing mold supports claim of earlier concealment | Fenasci: Later discovery does not show knowledge at sale; inspector found no visible mold at time of April inspection | Held: Post-purchase mold has no bearing on agent’s pre-sale knowledge |
| Whether redhibition claim lies against real estate agent | Riedel: Asserted redhibition alongside other claims | Fenasci: Redhibition is between buyer and seller; agent is not a seller | Held: Redhibition cannot be maintained against agent; dismissal proper |
Key Cases Cited
- Fruehauf Trailer Co. v. Baillio, 210 So.2d 312 (La. 1968) (appeals favored and should not be dismissed on mere technicalities)
- Chauvin v. Chauvin, 49 So.3d 565 (La. App. 1st Cir. 2010) (a premature appeal motion is cured once final judgment is signed)
- City of Denham Springs v. Perkins, 10 So.3d 311 (La. App. 1st Cir. 2009) (same; premature appeal defect cured by later judgment)
- Jones v. Anderson, 224 So.3d 413 (La. App. 1st Cir. 2017) (summary judgment standard and materiality determined by substantive law)
- Crosstex Energy Servs., LP v. Texas Brine Co., LLC, 240 So.3d 932 (La. App. 1st Cir. 2017) (appellate de novo review of summary judgment)
- Duplechin v. Adams, 665 So.2d 80 (La. App. 1st Cir. 1995) (realtor liability for fraud or negligent misrepresentation; duty to communicate accurate information)
- Osborne v. Ladner, 691 So.2d 1245 (La. App. 1st Cir. 1997) (duty to disclose extends only to defects of which agent is aware)
- Byrd v. Pulmonary Care Specialists, Inc., 209 So.3d 192 (La. App. 1st Cir. 2016) (clerical errors in appeal papers that do not obscure intent are not grounds to dismiss an appeal)