By:  Patricia B. McMurray, JD
Baker, Donelson, Bearman, Caldwell & Berkowitz, PC
450 Laurel Street, Chase Tower North, 20th Floor
Baton Rouge, Louisiana  70801

Background

           In Valobra v. Nelson, the buyer sued the seller alleging the seller misrepresented the condition of the property by checking the "no" box on the Property Disclosure Document ("PDD") instead of the "no knowledge" box as to questions regarding the condition of the property.[1]  The buyers allege because of this misrepresentation by the sellers on the PDD, the buyers agreed to buy the property "as is" and waive redhibition rights in the Act of Sale. Redhibition is a warranty required by state law to be given to a buyer unless waived by the buyer.  Redhibition means the buyer can sue to return the property to the seller or get a refund of a portion of the purchase price after the sale if the buyer discovers a defect in the property that if the buyer had known about prior to the sale he would not have bought the property.[2]  The Valobra buyers alleged that the sellers checked the box marked "no" in response to questions on the PDD regarding whether the property had certain defects.  Defects in the property were later discovered.  The sellers then claimed they did not know of the defects in the property.[3]  The buyers argued that the sellers checking the box marked "no" instead of the box marked "no knowledge" on the PDD and therefore intentionally misled the buyers into believing that the sellers had knowledge that there were no defects in the property.  The buyers alleged the sellers were in bad faith and fraudulently induced the sellers to execute a waiver of redhibition contained in the Act of Sale by stating "no" instead of "no knowledge" of the defects.[4] 

24th Judicial District Court

           The trial court, the 24th Judicial District Court denied the motion for summary judgment filed by the Seller on March 25, 2018.  The Seller alleged in the motion that there appears to be no controversy over whether the Buyer was aware of the alleged "defects" at the time of execution of the waiver of redhibition included in the Act of Sale as the Seller and Buyer had agreed to a price concession to compensate the Buyer for the "defects" noted by the home inspection prior to sale.  The Seller filed a Writ to the Court of Appeal requesting the Court of Appeal revise the trial court's denial of the motion for summary judgment. 

         Louisiana REALTORS┬« filed an amicus brief in support of the Seller's Writ.  The Court of Appeal held that the


"Plaintiff's (Buyers) argument failed to recognize that the Property Disclosure required by the RPDA (property disclosure form) does not provide a guaranty that no defects exist in the property, but rather requires disclosures of known defects to the best of the seller's information, knowledge or belief.  La. R.S. 9:3198(D) specifically states a property disclosure document is not a warranty and is not part of any contract between the buyer and seller.  In addition, buyers, such as plaintiffs, cannot rely on the property disclosure document as a substitution for inspections.  Therefore, plaintiffs cannot use their alleged reliance on the Property Disclosure as an excuse for failing to obtain a comprehensive home inspection or failing to follow the advice of the inspectors to obtain more extensive inspections." (explanation supplied)

The Writ was granted by the Court of Appeal and the reversal of the denial of the motion for summary judgment was granted.  All claims against the Seller by the Buyers were dismissed.  A full copy of the Court of Appeal's Judgment can be found here.

Louisiana Supreme Court

           The Buyers filed an Application for Writ of Certiorari with the Louisiana Supreme Court on January 16, 2019 requesting a review of the Fifth Circuit Court of Appeal Judgment.  We will provide information on the outcome of the appeal to the Louisiana Supreme Court when available.


[1]  Nancy Williams wife of/and Franco Valobra vs. Robert Allan Nelson and Jerome Garfield Smith, III as Co-Trustees of the Allan R. & Louise S. Nelson Revocable Trust & The Allan R. Nelson Marital Trust, Suit No. 720-048, 24th Judicial District Court for Jefferson Parish

[2]  La. Civil Code 2520

[3]  Id.

[4]  Id.