Richard Lobur, Jeanna Harbison Lobur, Denise A. Harbison, and Madison Olivia Harbison v. Thomas Richard Temple, Jr., individually and in his representative capacity as trustee of the Candace Temple Adams Trust, the Candace Temple Adams Trust, and Candace Temple Adams

FIRST CIRCUIT

2024 CA 0 176

RICHARD LOBUR, JEANNE HARBISON LOBUR, DENISE A.
HARBISON, AND MADISON OLIVIA HARBISON
L01111

TIMOTHY " TIM" TEMPLE,, JR.,[] INDIVIDUALLY AND IN HIS
zY
RIA REPRESENTATIVE CAPACITY AS TRUSTEE OF THE CANDACE
y" TEMPLE ADAMS TRUST, THE CANDACE TEMPLE ADAMS

ON APPEAL FROM THE NINETEENTH JUDICIAL DISTRICT COURT
PARISH OF EAST BATON ROUGE, STATE OF LOUISIANA
NUMBER C677489, SECTION 24

HONORABLE DONALD R. JOHNSON, JUDGE

Joseph Arthur Smith, III Counsel for Plaintiffs -Appellees
J. Arthur Smith, IV Richard Lobur, Jeanne Harbison
Baton Rouge, Louisiana Lobur, Denise A. Harbison, and
Madison Olivia Harbison
Michael Jerome Jefferson
Baton Rouge, Louisiana

Thomas M. Lockwood Counsel for Defendants -Appellants
Baton Rouge, Louisiana Timothy " Tim" Temple,
individually and in his representative
B. Scott Cowart capacity as trustee of the Candace
George O. Luce Temple Adams Trust, the Candace
Baton Rouge, Louisiana Temple Adams Trust, and Candace
Temple Adams

MEMEAEM

Although the original petition named " Thomas Richard Temple, Jr." as a defendant in his
capacity as trustee for the Candace Temple Adams Trust, a subsequently -filed petition amended
the caption to identify the defendant trustee of the Candace Temple Adams Trust as " Timothy
Tim' Temple."

CHUTZ, J.

Defendants -appellants, Timothy " Tim" Temple, individually and in his

capacity as trustee for the Candace Temple Adams Trust ( the Trust), the Trust, and

Candace Temple Adams, appeal the trial court' s judgment concluding defendants
are liable to plaintiffs -appellees, Richard Lobur, Jeanne Lobur, Denise A.

Harbison, and Madison Olivia Harbison, for fraud,
violation of the warranty

against redhibitory defects, and general damages in connection with the sale of

immovable property.' We reverse and render.'

On December 17, 2018, plaintiffs filed this lawsuit,
averring that they

purchased the subject property, which consisted of a lot and a house located at

3436 Perkins Road in Baton Rouge, from defendants on December 15, 2017 for

700, 000.00. It is undisputed that the December 15, 2017 act of cash sale executed

by the parties included the following provisions:
PURCHASER( S)
agrees and stipulates that the property, including
the improvements located thereon, is conveyed and sold " as -is,
where -is" without any warranties whatsoever as to fitness or
condition,
whether expressed or implied, and Purchaser expressly
waives the warranty of fitness and the guarantee against hidden or
latent vices ( defects in the property sold which render [ it] useless or
render its use so inconvenient or imperfect that Purchaser would not
have purchased it had [ he or] she known of the vice or defect)
provided by law in Louisiana, more specifically, that warranty ... with
respect to Seller' s warranty against latent or hidden defects of the

2 Denise Harbison, who is Jeanne Lobur' s sister-in- law, owns a one percent interest in the
subject property; Madison Olivia Harbison, Jeanne Lobur' s niece, owns a 49 percent interest;
and the Loburs own the remaining fifty percent of the subject property.

3 Plaintiffs filed with this court a motion to strike defendants' reply brief, averring that it did not
comply with the Louisiana Uniform Rules -- Courts of Appeal in that it consisted " almost
entirely of the same points" that defendants had urged in their original brief. According to Rule
2. 12- 6, " The appellant may file a reply brief, if he has timely filed an appellant brief, but it shall

be strictly confined to rebuttal of points urged in the appellee brief No further briefs shall be
filed except by order of the court." We find nothing in this rule requiring that appellants refrain
from assertions made in the original appellant brief to rebut the contentions raised in appellees'
brief as defendants have done. See and compare e. g., Parker v. Recreation & Park Conunn for
Par. of E. Baton Rouge, 2021- 0145 ( La. App. 1st Cir. 11/ 1/ 21), 332 So. 3d 706, 715 ( issues
raised for the first time in a reply brief are not properly before the reviewing court). Moreover,
we find plaintiffs have failed to articulate how they have been prejudiced by a reiteration of the
same arguments raised in the original appellant brief. Accordingly, the motion to strike is denied.
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property sold....Seller expressly subrogates Purchaser to all rights,
claims and causes of action Seller may have arising from or relating to
hidden or latent defects in the property [ the " as -is, where is"
provisions]. [ Emphasis added.]

The plaintiffs' twice -amended petition alleges that, prior to execution of the

November 3, 2017 purchase agreement, in a property disclosure statement signed

on July 27, 2017, Tim misrepresented his knowledge of the condition of the house,

including attesting that no repairs had been made and that there were no defects in

the house. Plaintiffs further averred defendants provided them with a limited

structural evaluation report, dated November 12, 2016, that had been performed by

engineer Michael Stein ( the Stein report), which included numerous

recommendations for repair. According to plaintiffs, defendants represented that all

of the work recommended in the Stein report had been completed and that there

were no defects in the house. Relying on these representations, plaintiffs alleged

they entered into the December 15, 2017 act of cash sale and purchased the house.

In their amended petition, plaintiffs asserted that, contrary to defendants'

representations, much of the work set forth in the Stein report had not been

completed before December 15, 2017. Plaintiffs averred defendants made these

misrepresentations with the intent of inducing them to purchase the property, and

that plaintiffs would not have done so had they known of the house' s true

condition. Thus, they claimed that defendants engaged in fraud, which vitiated

their consent to the act of cash sale, and that the " as -is, where is" provisions were

without effect. Plaintiffs sought recission of the act of sale and return of the

purchase price. In addition, plaintiffs requested compensatory damages, attorney

fees, and costs.

Defendants answered the lawsuit, expressly denying they had made any

misrepresentations about the condition of the house. Defendants further averred

that they provided plaintiffs with the Stein report, the July 27, 2017 property

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disclosure statement, and invoices from the contractors who performed repairs on

the house, which collectively contained detailed information about the condition of

the house and were sufficient to provide plaintiffs with actual notice of the

existence of any vices or defects that the house may have had, or placed plaintiffs

on notice to examine the house to ascertain its soundness before purchasing it.

Relying on the " as -is, where -is" provisions of the December 15, 2017 act of cash

sale, defendants aver plaintiffs are precluded from recovering any relief for defects

in the house.

A three- day bench trial was held commencing on May 9, 2023. At the

conclusion, the trial judge advised the respective parties' attorneys to each submit

proposed findings of fact, conclusions of law, and a judgment consistent with the

relief sought. On September 25, 2023, the trial court held a hearing, allowing the

attorneys to argue their respective positions. Adopting plaintiffs' proposed findings

of fact and conclusions of law as written reasons,' the trial court signed a judgment

on September 26, 2023, concluding that in connection with the sale of the house to

plaintiffs, defendants committed fraud and, therefore, were liable for violations of

their warranty against defects in the sale of the house. The judgment rescinded the

December 15, 2017 act of cash sale, declaring the conveyance null and void, and

ordered defendants to return the purchase price to plaintiffs. Additionally, general

damages of $2, 000.00 were awarded to Richard and Jeanne Lobur. Defendants

suspensively appealed.

The best practice is for the trial judge to author for himself any reasons, including factual
findings and legal conclusions. This approach gives the reviewing court the benefits of his
thoughts and insights into the matter under consideration. Preparation of a judgment comprised
of the stark, final determinations of a case is quite different from the presentation of a party' s
factual findings and legal conclusions as the inner thoughts of the judge. Thus, this court does
not place any real value on the written reasons drafted entirely by counsel for one of the parties.
See King v. Allen Court Apartments 11, 2015- 0858 ( La. App. 1st Cir. 12/ 23/ 15), 185 So. 3d 835,
839, writ denied, 2016- 0148 ( La. 3/ 14/ 16), 189 So. 3d 1069.

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DISCUSSION

Preliminarily, we note that the evidence at trial focused on four defects in

the house, discovered by plaintiffs after December 15, 2017. These were ( 1) the

deterioration of the balcony; ( 2) uneven flooring in the kitchen; ( 3) water intrusion

in the second -floor bathroom; and ( 4) crawlspace moisture. Relative to these

defects, plaintiffs' expert structural engineer, Ryan Dunlevy, testified that only

those related to the balcony were major structural defects, describing the others as

of a minor nature.

On appeal, defendants contend because the record lacks any evidence of a

fraudulent intent or an intent to deceive to obtain an advantage, the trial court erred

in concluding they committed fraud in conjunction with the sale of the house.

Specifically, they challenge the trial court' s findings that ( 1) they failed to provide

information about the repair work performed on the house, thereby misrepresenting

the condition of the house; and ( 2) when Tim, as trustee of the Trust, signed the

property disclosure statement on July 27, 2017, he intentionally misrepresented the

condition of the house.

Pursuant to La. C. 0 art. 1953, fraud is a misrepresentation or a suppression

of the truth made with the intention either to obtain an unjust advantage for one

party or to cause a loss or inconvenience to the other. Fraud may also result from

silence or inaction. The party asserting a claim of fraud has the burden of proving

fraud by a preponderance of the evidence, both direct and circumstantial.

Markiewicz v. Sun Constr., L.L.C., 2021- 1535 ( La. App. Ist Cir. 6/ 14/ 22), 343

So. 3d 758, 766. See La. C. C. art. 1957. In order to recover for fraud, plaintiffs bear

the burden of proving ( 1) a misrepresentation of material fact, ( 2) made with the

intent to deceive, and ( 3) causing justifiable reliance with resultant injury.

Markiewicz, 343 So. 3d at 766. Fraudulent intent, or the intent to deceive, is a

necessary and inherent element of fraud. Fraud cannot be predicated upon mistake

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or negligence, no matter how gross. Minton v. Acosta, 2021- 1180 ( La. App. 1st

Cir. 6/ 3/ 22), 343 So3d 721, 730. Moreover, defendants cannot fraudulently

conceal their mistake if they have no knowledge of that mistake. Markiewicz, 343

A seller warrants his buyer against redhibitory defects, or vices, in the thing

sold. La. C. C. art. 2520. But this warranty may be excluded or limited pursuant to

La. C. C. art. 2548, which provides, in pertinent part:

The parties may agree to an exclusion or limitation of the
warranty against redhibitory defects. The terms of the exclusion or
limitation must be clear and unambiguous and must be brought to the
attention of the buyer.

While an exclusion or limitation of the warranty against redhibitory defects

is usually effective, La. C. C. art. 2548 further provides that "[ a] buyer is not bound

by an otherwise effective exclusion or limitation of the warranty when the seller

has declared that the thing has a quality that he knew it did not have." Shelton v.

Standard1700 Associates, 2001- 0587 ( La. 10/ 16/ 01), 798 So. 2d 60, 64. Under

Article 2548, an otherwise effective exclusion or limitation of the warranty against

redhibitory defects is not effective if the seller commits fraud, as defined in the

civil code, upon the buyer. Thus, although the warranty against redhibitory defects

may be excluded or limited, a seller cannot contract against his own fraud and

relieve himself of liability to fraudulently induced buyers. Id.

The existence of fraud is a question of fact. And the trial court' s

determination of fraud or its absence is a question of fact that will not be disturbed

on appeal absent manifest error. Smith v. Roussel, 2000- 1028 ( La. App. 1st Cir.

6/ 22/ 01), 809 So. 2d 159, 164.

Failure to Provide Information About Repair Work:

In the purchase agreement entered into on November 3, 2017, the parties

stipulated, " This Agreement constitutes the entire Agreement between the parties,

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and any other agreements not incorporated herein in writing are void and of no

force and effect." Also in the purchase agreement, under " ADDITIONAL TERMS

AND CONDITIONS," plaintiffs' realtor added in longhand, " Seller will provide

contractor information for repair work and addition of the PIER to the structure

along with any warranty information."

In adopting plaintiffs' factual findings, the trial court concluded that

defendants failed to provide: ( a) the proposal offered by Joffrion Construction to

complete the work set forth in the Stein report for $ 163, 143. 00; ( b) photographs

taken by ABV Construction, which showed the work/repairs the company

performed between March and May of 2017; ( c) photographs taken by Stein in

conjunction with his November 12, 2016 report; ( d) the " Inspection and Due

Diligence Response" from a prior potential buyer of Candace and her ex- husband

prior to the transfer of the house to the Trust; ( e) a proposal from WCK Foundation

Repair to perform a foundation repair for $24,600. 00 in September 2016; and ( t) an

inspection report undertaken for the Trust dated July 24, 2017, showing issues with

water intrusion. Thus, the trial court implicitly determined that that omission of

this information constituted a misrepresentation evincing an intent to deceive to

obtain an unjust advantage so as to support a claim of fraud against defendants.

A contract constitutes the law between the parties. If the contract' s wording

is clear and expresses the intent of the parties, the agreement must be enforced as

written. State Through Div. of Admin. v. Migues Deloach Co., LLC, 2023- 0320,

La. App. 1st Cir. 12/ 27/ 23), 381 So. 3d 781, 790.

Aside from the photographs showing ABV Construction working, none of

the remaining items is " contractor information for repair work." The ABV

Construction photographs were admitted into evidence by stipulation of the parties.

Despite having called Aurelio Lou Vasquez, a managing member of ABV

Construction, who identified the photographs of his crew working on the house,

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plaintiffs failed to elicit testimony that the photographs had been provided to

defendants. Likewise, plaintiffs failed to produce any evidence showing that the

defendants were given or had knowledge of the photographs at any time between

November 3, 2017, when the parties entered the purchase agreement, and

December 15, 2017, when the parties executed the act of cash sale. Accordingly,

we find that the trial court was manifestly erroneous in its conclusion that

defendants committed fraud in the sale of the house to plaintiffs as a result of

failing to provide " contractor information for repair work."'

Representations in the Residential Property Disclosure Act:

As this court noted in Bella v. Knieper, 2024- 0277 ( La. App. I st Cir.

So. 3d ---- ----, La. R.S. 9: 3198( A)( 1) of the Residential Property Disclosure

Act, La. R.S. 9: 3195- 3200 ( RPDA), mandates that the seller of residential real

property complete a property disclosure document. " Property disclosure

document" is a defined term under the RPDA and " means a document in a form

prescribed by the Louisiana Real Estate Commission, or a form that contains at

least the minimum language prescribed by the commission, which is presented by

the seller to the purchaser in the manner set forth in R.S. 9: 3198( B) and which

As set forth in the factual findings that the trial court adopted as its own, reference is made to a
text message between Candace and defendants' realtor suggesting that Tim and/ or Candace
planned to wait until the sale of the house was consummated, when [ p] laintiffs could not back
out of the sale, to divulge certain issues with the house to [ plaintiffs]." Based on our review of
the entire text conversation between Candace and the realtor, this finding is insufficient to permit
an inference of a fraudulent intent or an intent to deceive by defendants to gain an unjust
advantage. In the text conversation, Candace stated to the realtor, " Talking to Tim and maybe
considering making an offer" on one of two houses that Candace had recently visited which were
for sale. In response to the realtor' s text indicating the sellers of one house " are motivated and
can move out ASAP," Candace responded, " I talked to Tim and he said let' s wait until we know
the [ plaintiffs] can' t back out of the sale of my house." Accordingly, to the extent the trial court
concluded the text conversation constituted a misrepresentation made with a fraudulent intent or
an intent to deceive, that determination is manifestly erroneous.
To the extent that the trial court' s adopted factual finding that plaintiffs relied upon
statements by defendants' realtor in deciding to purchase the house ( presumably her statements
that in light of the repairs the house was " better than new,") these representations are insufficient
to impute to defendants. According to the terms of the November 3, 2017 purchase agreement,
the respective realtors representing the parties, " have acted only as real estate brokers ... and
make no warranty of any nature unless specifically set forth in writing." Defendants have pointed
to, and we have found, no provisions in the purchase agreement in which defendants' realtor
made any warranties as to the condition of the house.
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discloses, at a minimum, known defects in the residential real property." La. R.S.

9: 3196( 2).

La. R.S. 9: 3198( B)( 1) provides as follows:

The seller shall complete the property disclosure document in good
faith to the best of the seller' s belief and knowledge as of the date
the disclosure is completed and signed by the seller. If the seller has
no knowledge or information required by the disclosure document, the
seller shall so indicate on the disclosure statement and shall be in
compliance with this Chapter. [ Emphasis added.]

Known defect" is also a defined term in the RPDA. La. R.S. 9: 3196( 1)

provides as follows:

Known defect" means a condition found within the property that was
actually known by the seller and that results in any of the following:

a) Has a substantial adverse effect on the value of the property.

b) Significantly impairs the health or safety of future occupants of the
property.

If not repaired, removed, or replaced, significantly shortens the
c)

expected normal life of the property.

The RPDA further sets forth that the property disclosure document does not

serve as a warranty by the seller and cannot be used by the purchaser as a

substitution for inspection or warranties. La. R.S. 9: 3198( D). Importantly, the

RPDA specifically exempts from liability a seller who makes an error or omission

that is not a willful misrepresentation, providing in part as follows:

A seller shall not be liable for any error, inaccuracy, or omission of
any information required to be delivered to the purchaser in a property
disclosure document if ... :

1) The inaccuracy, or omission was not a willful
error,

misrepresentation according to the best of the seller' s information,
knowledge, and belief.

La. R.S. 9: 3198( E).

A seller who makes a willful misrepresentation can be found liable under the

fraud articles in the Louisiana Civil Code. See Stutts v. Melton, 2013- 0557 ( La.

10/ 15/ 13), 130 So. 3d 808, 813. Stated another way, "[ a] claim that the seller

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violated the provisions of the RPDA ... is a fraud claim." Id. at 815- 16. See also

La. R.S. 9: 3200 (" This Chapter shall not limit or modify any obligation between

buyers and sellers created by any other statute or that may exist in law.").

In adopting plaintiffs' findings of fact and concluding defendants committed

fraud, the trial court expressly determined that when Tim signed the property
disclosure statement, he falsely indicated that "[ t]he property had never had any

damage/ defects"; " no repairs had been done to the property"; and " there were no

defects with the balcony." Additionally, the trial court expressly found that Tim' s

representations in the property disclosure statement failed to disclose anything
about prior/current water intrusion, ... mold or mildew issues in the [ house], [ or]

defects regarding the interior or exterior walls, [ or] any defects regarding the

foundation."

The uncontroverted evidence established that Candace purchased the house

with her husband. When they divorced, the house was transferred to the Trust as

part of her divorce settlement. When his sister, Candace, decided she wanted to sell

the house, in his capacity as trustee, Tim agreed. Because Tim worked full time,

his participation in the sale was limited to the attendant administrative duties

necessary to facilitate the transfer of the house to plaintiffs and writing the checks
to pay for expenses associated with the sale. Candace testified that she was unable

to handle the sale of the house and the needed repairs. Therefore, her brother,

Ryan, arranged for all the repair work, with Tim' s approval as trustee.

As to the property disclosure statement, since she had lived in the house,

Candace filled it out. Tim, in his capacity as trustee, subsequently signed the
6
disclosures as filled out by Candace. According to Candace, at the time she filled

out the disclosure, she knew there were no defects because she lived in the house

6 Although at trial, Tim testified that it was not his signature on the document, as noted during
his trial testimony, in his deposition he had testified that the signature appeared to be his. But
Tim ultimately testified that he ratified and affirmed everything his brother and sister did in
connection with the sale.

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and all the defects had been repaired. She further explained that although there had

been mold underneath the house in the crawl space, a proper mold testing had been
undertaken, and the space had been remediated. Candace stated that she marked

No," in response to Inquiry ( 15), " Has there been any foundation repair?" because

everything had been repaired and there were no issues. Candace identified Ryan' s

longhand next to Inquiry ( 15), which noted, " There is no foundation failure or

repair but an additional pier was added to meet code requirements/ structural

requirements."

Mindful that fraud cannot be predicated upon mistake or negligence — no

matter how gross — our review of the record reveals that none of the factual

findings are supported by evidence of a fraudulent intent or the intent to deceive by
defendants. The property disclosure shows that in Section 3, entitled

STRUCTURE," the respondent was asked " Are there any defects regarding the

following?" and included the list of items that Candace marked " No." With the

exception of the foundation, the inquiry did not expressly elicit information about

defects that may have existed in the past. Similarly, Inquiry 41 asked, " Does the

property or any of its structures contain any of the following?" Included in the
itemized list was " Mold/Mildew" and " Toxic Mold." That Candace interpreted

these inquiries as seeking information about the current condition of the house

neither shows a fraudulent intent or an intent to deceive by defendants nor permits

such an inference. And while Candace incorrectly marked " No," to the question of

whether the foundation had been repaired, Ryan' s explanation apprised plaintiffs

of the modifications made to the foundation.' Ryan' s handwritten response on the

property disclosure statement belies a fraudulent intent or an intent to deceive on

7 Plaintiffs' structural engineering expert Dunlevy opined that when the pier -and -beam system
had been installed, the kitchen was overjacked, lifting the kitchen floor too high and creating
stresses in the floor. The repair recommendation of this minor defect was to adjust the beam to
the perimeter elevation and then remove and replace the flooring.
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the part of defendants and cannot support a finding of justifiable reliance by

plaintiffs on the " No" answer to Inquiry 15.

To the extent that a reasonable factual basis exists to support a finding that

the beam identified by Stein in his November 12, 2016 structural engineering

report was not replaced when ABV Construction undertook repairs of the house,

the record is devoid of evidence to conclude plaintiffs proved fraud by defendants

on this basis. Stein' s report stated, " The beam around the balcony was also

deteriorated. This location had not yet been opened at the time of my visit. The

rotted beams should be replaced and the balcony waterproofed as needed to

prevent recurrence." Although Candace believed the ABV Construction repairs

resulted in no defects remaining in the house, i.e., that all the defects had been

repaired, plaintiffs' expert structural engineer Dunlevy testified that, based on the

degree of decay and rot he observed in the beam around the balcony, it was his

opinion the work recommended in the November 12, 2016 structural engineering

report had not been done to the balcony. Thus, the trial court may have implicitly

concluded that, as filled out by Candace and signed by Tim, the property disclosure

statement included a misrepresentation. But the record contains nothing to

establish any presumed misrepresentation was willfully done with the requisite

fraudulent intent or intent to deceive by defendants.

Mindful that a seller cannot be liable for any error, inaccuracy, or omission

of any information required to be delivered to the purchaser in a property
disclosure document if the error, inaccuracy, or omission was not a willful

misrepresentation according to the best of the seller' s information, knowledge, and

belief, we conclude the trial court was manifestly erroneous in its conclusion that

defendants committed fraud sufficient to rescind the December 15, 2017 act of

cash sale. The trial court' s conclusion to the contrary was error. Therefore, we

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reverse the trial court' s judgment in its entirety and render judgment in favor of

defendants, dismissing plaintiffs' claims.

Plaintiffs filed an answer to the appeal, asserting entitlement to attorney fees

on the basis of rescission due to fraud. See La. C. C. art. 1958 (" The party against

whom rescission is granted because of fraud is liable for damages and attorney

fees."). Because the trial court' s conclusion that defendants committed fraud was

manifestly erroneous, and we have reversed the judgment ordering rescission,

plaintiffs are not entitled to attorney fees and we deny the requested relief.

DECREE

For these reasons, the trial court' s judgment is reversed. Judgment is

rendered in favor of defendants, Timothy " Tim" Temple, individually and in his

capacity as trustee for the Candace Temple Adams Trust, the Candace Temple

Adams Trust, and Candace Temple Adams, dismissing the claims of Richard

Lobur, Jeanne Lobur, Denise A. Harbison, and Madison Olivia Harbison against

them. The relief requested in the answer is denied. Appeal costs are assessed

against plaintiffs.

MOTION TO STRIKE REPLY BRIEF DENIED. JUDGMENT

REVERSED AND JUDGMENT RENDERED, DISMISSING PLAINTIFFS'

CLAIMS WITH PREJUDICE. RELIEF REQUESTED IN ANSWER

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