Kenneth Lawrence v. Southern Recreations, LLC D/B/A Hope's Camper Corner

Judgment rendered September 23, 2020.
Application for rehearing may be filed
within the delay allowed by Art. 2166,
La. C.C.P.

No. 53,565-CA

COURT OF APPEAL
SECOND CIRCUIT
STATE OF LOUISIANA

*****

KENNETH LAWRENCE Plaintiff-Appellant

versus

SOUTHERN RECREATIONS, Defendant-Appellee
LLC D/B/A HOPE’S CAMPER
CORNER, ET AL

*****

Appealed from the
Fourth Judicial District Court for the
Parish of Ouachita, Louisiana
Trial Court No. 20160885

Honorable Robert C. Johnson, Judge

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OFFICE OF ANTHONY J. BRUSCATO Counsel for Appellant
By: Anthony J. Bruscato
Adam Jordan Ross

COTTON, BOLTON, HOYCHICK, ET AL Counsel for Appellee,
By: David Paul Doughty Frank Maxwell, Jr.

*****

Before MOORE, STEPHENS, and McCALLUM, JJ.

McCALLUM, J.

This lawsuit involves the sale of a used motor home that sustained

significant water damage. The buyer appeals a judgment denying his claims

of redhibition and unfair trade practices.

For the following reasons, we affirm the judgment.

BACKGROUND

Frank Maxwell, Jr. (“Maxwell”), is a retired general contractor and

owner of Maxwell Hardware in Delhi, Louisiana. Maxwell purchased his

first motor home, a new Fleetwood Providence, for $185,000 in the fall of

2005. The motor home was equipped with three “slides” which extended to

increase its interior space.

Over the years, Maxwell drove the motor home to LSU home football

and baseball games, the Southeastern Conference baseball championship

tournament in Alabama, regional bridge tournaments, and on a family trip to

Montana. When the motor home was not on the road, it was parked in an

uncovered spot near Maxwell’s hardware store. The motor home was never

under a shed or had a tarp placed over it. Maxwell often towed a 2007

Mazda car behind the motor home.

The owner’s manual (“manual”) for the motor home stated that the

vehicle was equipped with a new roof material called thermoplastic olefin.

The manual recommended a roof inspection every three months to “maintain

the weatherproof integrity” of the motor home. An area needed to be

resealed if the sealant was cracked or peeling, or if there was a void or

missing sealant. The roof was not inspected until 2014. The only time

Maxwell went on the roof was shortly after he purchased the motor home.

The manual stated that the roof required special adhesives and

materials, and warned against the use of silicone sealants. The original

sealant used was a self-leveling lap sealant which was designed to bond with

the vinyl roof. It was widely accepted that the lap sealant would perform as

expected for no more than two or three years.

Maxwell took the motor home to Affordable RV Repairs in Monroe to

have a refrigerator repaired near the end of 2013. After an Affordable

employee went on the motor home’s roof to check a vent for the refrigerator,

he told Maxwell that the roof needed to be inspected or to have a coating

applied. Maxwell could not recall exactly what was said.

In the spring of 2014, Maxwell asked Jimmy Hutchinson

(“Hutchinson”), a carpenter and homebuilder who had done work for him, to

apply a roof coating and to caulk the roof. After Hutchinson and his son

pressure-washed the roof, he told Maxwell the roof was in excellent

condition and did not need anything done. Maxwell asked them to caulk it

anyway out of an abundance of caution. Maxwell did not refer to the

manual to learn the recommended sealant for the roof. Instead, Maxwell

provided an ordinary silicone caulk that was designed for general use. He

paid Hutchinson $75 for the work.

In 2015, Maxwell, approximately 85 at the time, was urged by his son

to stop using the motor home. After discussing it with his wife, Maxwell

decided he would use the motor home through the 2015 LSU football season

and then sell it. Maxwell went to Hope’s Camper Corner in Monroe,

Louisiana, to inquire about a consignment sale, and they agreed to accept the

motor home after the football season was over.

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Maxwell was unable to fully enjoy his motor home for that last

football season. In September of 2015, the motor home’s engine stopped

working as Maxwell drove from a bridge tournament in Tunica, Mississippi,

to Baton Rouge. When Maxwell brought his motor home to Louisiana

Machinery in Monroe to determine what had gone wrong, it was discovered

that rust in the fuel tank had reached the engine and ruined all the fuel

injectors. It cost Maxwell over $10,000 for the engine repairs. The motor

home remained at the shop until November of 2015 when Maxwell drove it

to Delhi to have its interior and exterior cleaned to prepare it for sale.

Hope’s Camper Corner has been operated by Lloyd Sivils (“Sivils”)

for 21 years. Maxwell and Sivils entered into an agreement on December 1,

2015, for Hope’s to sell the motor home and the 2007 Mazda. Maxwell was

to receive $50,000 from the sale of the vehicles. If the motor home was in

good condition, its NADA value was $65,000. According to Maxwell, he

did not know what the motor home was worth but Sivils said he could get at

least $50,000 for it. Hope’s would keep whatever someone was willing to

pay over that amount. By the terms of the consignment agreement, Maxwell

agreed to pay all costs of putting the motor home in salable condition.

Sivils signed the agreement on behalf of Hope’s. Maxwell left the motor

home and the Mazda, along with signed titles to the vehicles. He also left a

copy of the invoice for the engine repair in case a potential buyer had

questions. The invoice had Maxwell’s name on it.

The uncovered motor home was not parked on the sales lot at Hope’s,

but was parked by itself on gravel near the entrance. Neither a “for sale”

sign nor an “on consignment” sign was displayed on the motor home.

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In the spring of 2016, Kenneth Lawrence (“Lawrence”), who worked

40 years in concrete construction, was looking to buy another motor home

after having owned a 1996 Fleetwood motor home for two years. His

Fleetwood had been used primarily for hunting, and he wanted something

that could be used for travel with his family. Lawrence decided to visit

Hope’s to look for a “real nice, well used” motor home. Sivils told him that

Hope’s only had Maxwell’s motor home available and that it was listed at

$65,000. Lawrence, who was there for no more than 30 minutes that day,

walked through and along the sides of the motor home.

Lawrence returned to Hope’s a few days later. During this visit,

which lasted around 45 minutes, Royce Mobley (“Mobley”), a shop foreman

at Hope’s, started the motor home’s engine and extended the slides for

Lawrence. Lawrence was very happy with the vehicle’s drivetrain and

started becoming interested in the motor home. Lawrence did not otherwise

ask Sivils or Mobley about the motor home’s condition.

During a third visit, Sivils told Lawrence that the motor home engine

had been repaired and showed him the repair invoice. Lawrence responded

that he wanted to go inside the motor home and check the slides, air

conditioner, transmission, and engine to make sure they were in working

order. Lawrence was most interested in the condition of the drivetrain.

Mobley went into the motor home with Lawrence to show him how to

operate the slides, the air conditioner, and the generator.

Lawrence began negotiating with Sivils to purchase the motor home.

He mentioned that he wanted to “trade-in” his 1996 motor home. Lawrence

told Sivils that he would offer $45,000 and the trade-in for the motor home.

Sivils contacted Maxwell about the offer of $45,000, and he told Sivils that
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was acceptable. Maxwell also told Sivils that he would not make additional

repairs to the motor home at that price.

Lawrence obtained insurance on the motor home with Progressive

Insurance on March 3, 2016. The purchase, which was financed, was

finalized on March 7, 2016. There was no bill of sale for the transaction.

Sivils delivered the motor home to Lawrence’s home in West Monroe.

Lawrence wanted to install new carpet in all areas of the motor home except

the rear bedroom, but he opted to use wood flooring instead because of the

cost. On March 8, Sivils purchased floor planks at Home Outlet in West

Monroe for $748. He hired Timmy Worsham and his son to remove the

carpet and install the planks. The Worshams began working on March 9 and

stopped working on March 11. While they worked, two of the slides were

extended, with shims driven under the bottom of the slides.

Between March 8 and 12, the Monroe area experienced a historic

weather event (“storm”) as over 24 inches of rain fell. The Worshams

worked without incident on March 9 while removing carpet. Photos of the

project show the Worshams had installed planks starting from the back, and

no water was visible in the photos. However, after the new flooring had

been installed up to an area near the front seats, the Worshams alerted

Lawrence that they found carpet drenched with water. Examining the motor

home’s interior, Lawrence discovered that walls near the front had large

blisters bubbling out of them. Lawrence claimed that water dribbled out of

the blisters when he poked the blisters with a knife.

Lawrence contacted his insurer. Brian High, who writes estimates on

property damage claims for Progressive, examined the motor home on

March 16, 2016. Lawrence showed him the location of the damage and told
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High that he did not think the damage would be a covered loss because the

damage looked like it existed before his purchase. High took photos to

document the damage. Based upon the wall damage observed, High

estimated that the cost of repair would be $2,600. Progressive determined

that it was not a covered loss.

Lawrence called Sivils about the water damage. Sivils referred

Lawrence to Maxwell. Maxwell invited Lawrence to his house. Lawrence

showed Maxwell photos of damage to the floor, a cabinet above the door,

and an area behind the driver and passenger seats. Maxwell told Lawrence

that there was only collision coverage on the motor home. Maxwell then

reached out to a friend named Loftin to see if he could repair the damage.

No repair cost was discussed at the time. According to Lawrence, Loftin

never contacted him. Maxwell recalled that Lawrence never contacted

Loftin.

Lawrence claimed that he called Maxwell a few days later and offered

to pay half the cost of repairs, but Maxwell refused. Maxwell did not recall

that conversation and denied that Lawrence offered to pay half the cost of

repairs. Maxwell claimed that he did not know the cost of repairs until the

first day of trial. Maxwell testified that he would have paid for part of the

repairs back then if Lawrence had asked, but was no longer willing to do so.

Jeffrey Alford, a business and safety coordinator for Service First, went to

the motor home on March 21, 2016, to take air samples and look at the water

damage. Results of the air samples showed high levels of a type of mold

caused by wood decay.

The motor home has remained at Lawrence’s home without moving

from its concrete pad since the day it was delivered. Initially, Lawrence
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covered the motor home with a tarp, but eventually removed it because the

tarp made it difficult to enter the motor home to run the engine. Lawrence

has continued insurance coverage on the motor home. He also spent around

$1,000 to replace the batteries in the motor home.

Lawrence refused to give the title for the trade-in to Sivils and went to

Hope’s to retrieve the trade-in. Lawrence sold the trade-in for $6,000.

Sivils sold the Mazda tow vehicle for $7,200 and kept the proceeds.

LAWSUIT & TRIAL

Lawrence filed suit against Southern Recreation, L.L.C. d/b/a Hope’s

Camper Corner, Sivils, and Maxwell within a month of the sale of the motor

home. He alleged that he would not have purchased the motor home had he

known or been told that the roof leaked. He prayed that the court set aside

the sale on the basis that the motor home contained a redhibitory defect. He

also sought damages for what he alleged were unfair trade practices.

Southern Recreation and Sivils settled with Lawrence, leaving

Maxwell as the remaining defendant. A bench trial was held in this matter

over three days in 2019.

Lack of maintenance

Maxwell claimed that he was unaware of the recommendations

regarding maintenance of the roof through regular inspection and resealing.

When asked about the recommendation that all exterior openings and roof

components be resealed as necessary, he responded that resealing the roof

was not needed. He took care of any problems as they arose, and he did not

think it was necessary to pay attention to the roof since he never had any

roof leaks. The only water that he saw entering the motor home was when a

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small amount of water would sometimes come in when the slides were

opening or closing.

Maxwell testified that he never saw any indications of water leaks in

the ceiling or on the walls when he was last in his motor home at Hope’s on

December 1. There were some water stains near the slide on the driver’s

side, but he assumed they were from water that had entered while he

operated the slides.

Maxwell could not remember exactly what the Affordable employee

told him in 2013 about the roof. Maxwell denied he was asked if the roof

had ever been resealed. He did not ask the employee why he thought the

roof needed to be inspected or cleaned, or ask about the cost to reseal it. He

also denied that the employee mentioned anything about the sealant around

the joints being cracked. Maxwell did not ask the employee what would

happen to the roof if he did not do what Affordable suggested. Maxwell

testified that other than the comment about the roof needing to be inspected

or cleaned, he did not discuss the roof at Affordable.

When Maxwell hired Hutchinson to work on the roof, he did not

check with the manual before choosing the silicone caulk for the job. Even

though he doubted Hutchinson had ever been on the roof of another motor

home, he assumed that Hutchinson would know how to caulk it properly

since he was a carpenter. Unlike the recommend sealants, silicone caulk

was not designed to bind with the vinyl roof. While the silicone would

reduce the amount of water penetrating the roof if there was a leak at a roof

protrusion, it would not stop the leak.

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Hope’s

Maxwell did not mention the roof caulking done by Hutchinson to

Sivils because he did not think it was important. Sivils never asked Maxwell

if the roof had been resealed or inspected. Maxwell believed the motor

home was in salable condition when he left it at Hope’s. Sivils testified that

he would have given the motor home a “7” if grading its condition on a scale

of 1-10.

Nobody at Hope’s conducted a thorough inspection of the interior or

roof of the motor home at any time while it was offered for sale. Sivils

observed wear and tear in the interior as well as a few spots around the door,

but he did not see anything else wrong with the walls or ceiling during the

few times he entered the motor home. Sivils never saw any indication that

the motor home was leaking from the slides or roof. He did not notice any

musty or moldy odor or anything else indicating a moisture problem.

Mobley never saw anything on the walls indicating a roof leak while the

motor home was at Hope’s. He never noticed a musty or mildew smell.

Sivils testified that Lawrence never asked about the condition of the

motor home, and he did not represent its condition to Lawrence. Sivils

added that if Lawrence had asked about its condition, he would have

answered that he did not know.

Lawrence testified that he never noticed any visible water damage on

the interior of the motor home during any of his three trips to Hope’s before

buying it. He thought the motor home’s interior looked nice, albeit with a

little wear and tear. Lawrence did not have the motor home inspected before

his purchase. He testified that since Hope’s was a reputable company, he

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just accepted that it was a nice motor home and expected Hope’s would tell

him if something was wrong with it.

Lawrence claimed that in their discussions before the sale, Sivils

would refer to an owner without mentioning Maxwell by name. He testified

it was not until he was at the bank for the closing and Sivils told the bank to

make the check payable to Maxwell that he learned that Maxwell was the

actual owner. Sivils claimed that he told Lawrence upfront that the motor

home did not belong to Hope’s but was owned by Maxwell. It was not until

Lawrence contacted Maxwell after the sale that Maxwell knew that

Lawrence had purchased his motor home.

Maxwell testified that he did not know about Lawrence’s trade-in

until after the lawsuit was filed because Sivils had only told him the amount

of the proceeds that he would receive. He also did not know until after the

lawsuit that Sivils sold the Mazda for $7,200. Maxwell testified that he was

happy and satisfied to get $45,000 from the sale because he was ready to sell

the motor home and did not know what it was worth.

According to Maxwell, when Sivils contacted him about Lawrence’s

offer of $45,000, it was the first time he had heard from Sivils in three

months. Maxwell contended that he told Sivils to accept the offer but with

an “as is” condition. The consignment agreement between Maxwell and

Hope’s was amended to state “agreed $45,000” but the “as is” condition was

not documented on the agreement. Sivils explained that there was no need

to document it since Lawrence would not see the agreement.

Sivils testified that he told Lawrence the offer was acceptable for the

motor home in “as is” condition. Lawrence denied that the term “as is” was

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ever used with him, and he added that he would not have purchased the

motor home if he knew that was a condition of the sale.

The storm

Lawrence described “buckets full” of water coming down the walls

during the storm. He believed the leak was coming off the roof and then

down the walls. Lawrence testified that the water damage he saw after the

Worshams raised the alarm was in the front of the motor home. Lawrence

walked to the rear but did not see water coming through and water was not

on the carpet. Lawrence also testified that he did not see water coming into

the middle part of the motor home. The elder Worsham was deceased at the

time of trial.

The walls in the motor home were thin pieces of plywood with a vinyl

wallpaper attached to the front of them. Lawrence believed the wood was

already rotten when he bought the motor home, but the damage was

concealed behind the wallpaper.

Brian High from Progressive Insurance testified that the damage he

observed between the slide and the driver’s seat looked like rot to him and

not something that occurred during the policy period. High also saw damage

to slide molding, a wall, an area behind the driver’s seat, and an area above

the driver’s side window. High thought all this damage predated coverage.

High did not consider it strange that one of the first things that Lawrence

told him when they met was that the damage was pre-existing.

High explained that wet wood can dry out, but dampness over a

period of time will cause rot. He added that based on his experience, thin

plywood does not rot very quickly. After looking at the roof and the

condition of the seals, High thought the roof was the source of some of the
11

water. High believed it was possible that the water had leaked from the

slides themselves. However, he thought the slides were in their proper place

and position.

High provided a damage estimate for what he observed. However, he

did not open the cabinet doors to look for damage, and no damage to the

shower room was pointed out to him. High explained that a teardown

needed to be done in order to determine the full extent of damage.

Jeffrey Alford went to the motor home on March 21 to take air

samples and check the water damage. He did a visual inspection of the

forward compartment and found water stains on both the driver and

passenger sides. Alford believed that areas along the wall that were above

and behind the passenger and driver seats showed signs of long-term water

damage. While he could not put a timeline on the water damage because

different types of wood have different reactions to moisture, he did not think

it was something that would have happened over a couple of days. His

definition of long-term would be over at least three weeks. However, Alford

could not say one way or the other whether the damages that he saw existed

before the storm. Alford also testified that water damage from a substantial

rain two to three weeks before his inspection could be considered long-term

damage.

The experts

The trial court was presented with testimony from two experts who

possessed much experience working on motor homes and other recreational

vehicles (“RVs”). Royce Mobley (“Mobley”), who was employed as a shop

foreman at Hope’s, testified on behalf of Maxwell as an expert in RV roof

repairs, inspections, and reconditioning, and in general maintenance of RVs
12

and motor homes. Mobley had gone over some of the motor home’s

functions with Lawrence before his purchase. Cody Searcy (“Searcy”), who

supervised shop technicians at Clay’s RVs in West Monroe, testified on

behalf of Lawrence as an expert in all parts of a motor home other than the

drivetrain.

Mobley and Searcy described the design of the roof in detail,

including how there was a barrier within the roof which prevented ceiling

stains by channeling water to the walls and floor. The motor home had a

honeycomb roof made up of aluminum rafters, molded Styrofoam, and thin

wood decking.

Mobley looked at the motor home’s roof and interior on December 22,

2016, and on March 21, 2017. He agreed that he would expect a roof to look

horrible if it had gone nine years without an inspection or resealing. While

he did not do a full inspection of the roof, he thought its condition was

appropriate for a vehicle of its age. Mobley found the wood decking in the

roof to be structurally sound.

Mobley testified that in his experience it does not take very long for

wood exposed to moisture to start breaking down. He believed that wood

can deteriorate within a week depending on the type of wood and how wet it

got.

When he looked at the motor home after the lawsuit was filed,

Mobley noticed there was a gap along the sides and at the top of the slide on

the driver’s side. The gap became wider as it moved up the slide. Daylight

could be seen through this gap from inside the motor home. Mobley

contended there should not have been a gap if the slide was sealed properly.

He testified that the flooring work caused the top of the slide to tilt out,
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which meant the slide’s seal did not work properly. Shims were used to

raise the slide while the floor was installed, and following the floor

installation, the slides were never adjusted to accommodate the new floor

which was higher than the carpet. Mobley explained that the slides had to be

adjusted for the bubble gasket seals to fully compress and to function as

intended. He added that a slide that is not properly adjusted can allow water

to enter whether the slide is opened or closed.

In Mobley’s opinion, water damage to the interior was caused by the

lack of roof maintenance and from the gap created along the slide. While he

could not give percentages for how much either factor contributed to the

damages, he believed that a slide that far open would allow a great deal of

water to enter during a heavy rain.

Mobley explained that even if there were cracks in the sealant on the

roof, water would not have come down the walls in “buckets” as described

by Lawrence. However, the gap along the slide would have allowed water

to enter and flood down the wall in “buckets.” Mobley thought it was the

most logical explanation for why Maxwell never saw a leak. Mobley did not

examine the opposite slide on the passenger side closely.

Searcy looked at the motor home twice. His first visit was on April

16, 2018, when he performed a full physical inspection of it. Searcy

characterized the inspections done by High and Mobley as being more visual

in nature. Searcy’s second visit was to give a damage estimate.

Searcy explained that a roof inspection every 90 days is necessary in

order to look for web cracks on the surface of the sealant. Left untreated,

these web cracks will become deeper until they create a void. The silicone

apparently preserved the appearance of the sealant beneath it. Searcy
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thought that the sealant’s appearance did not change from the time the

silicone was applied until he removed the silicone during his inspection.

Thus, he believed the sealant was as dry and cracked in 2014 as it looked in

2018.

When Searcy removed the silicone from around the skylight above the

motor home’s shower, he found a hole large enough that he could almost put

his thumb through. Although the skylight crack was the most significant, he

also found large cracks around nearly every other roof protrusion when he

pulled up the silicone.

Searcy thought what he found around the shower skylight showed the

nature and extent of the water damage. There was mold on the Styrofoam

and the decking there was completely rotten. The skylight was held in place

by water-resistant screws which had deteriorated. Some of the screws no

longer had threads. Searcy believed it would take at least five years of

exposure to moisture for the screws to deteriorate in that manner. Searcy

also believed it was more likely than not that water from the outside left the

screws in that condition. The shower was located toward the middle-back

portion of the motor home. Searcy thought that possibly some of the water

coming through the skylight crack went in the shower and some went down

the side.

Searcy disagreed with Mobley about the role the slide played in the

water damage. He thought the slide was sealed properly while the planks

were being installed even with the slide moved up a little bit by the shims.

He also dismissed the significance of the gap that Mobley had seen earlier.

Searcy thought it was caused by the slide not being brought in all the way,

and not by any adjustment issue. He added that light can be seen between
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the gasket and the slide in any slide that is partially open. He found that the

slides sealed properly when he operated them and they were not out of

alignment. He found no reason for the slides to need adjustment since he

believed that the new floor was lower than the carpet it replaced, so it would

not cause the slide to tilt up.

In Searcy’s opinion, based on the lack of inspections and proper

sealant being reapplied while Maxwell owned the motor home, it was more

likely than not that rain entered the motor home’s interior prior to March 7,

2016, and caused extensive damage. He also believed that it was more

likely than not that water penetrated the motor home wherever there was a

roof protrusion. Searcy acknowledged that if he had not seen the sealant’s

condition or the photos taken by High, he would have had reservations about

giving an opinion on the condition of the motor home at the time of sale

since he did not inspect it until two years later.

Searcy testified that there was no way that the wood would look as it

did in High’s photos after only two weeks of water penetration. Searcy also

testified that he was able to press his finger through the motor home wall to

the outer layer. When it was pointed out to him that Lawrence was able to

do the same during the storm, he replied that it would take more than a

couple of days of deterioration for Lawrence to be able to do that.

Searcy thought the majority of the damage was done to the front of

the motor home, but he did find water damage to the rear of the interior. He

did not recall seeing much damage to the walls in the middle, although there

was water damage around the slides. He found the entire front area of the

motor home was rotten. Searcy testified that it would cost $10,000 to

$15,000 to repair the interior, with most of that for the damage to the front.
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He explained that repairing water damage to the interior involves gutting it,

and it is almost impossible to find matching paneling if a motor home is

older than ten years.

Searcy anticipated that it was more likely than not that the remainder

of the underside of the roof was in similar condition to what he saw around

the skylight. He explained that while the roof felt structurally sound when

he walked on it, that was because of its honeycomb structure. He thought

the roof was in need of complete replacement at the time of the sale based on

the evidence at trial and the condition of the sealant. The cost to replace the

roof would be $9,000 to $13,000, which would cover pulling the vinyl off

the roof, putting down new decking, and sealing the roof. In sum, Searcy

thought it would cost roughly $20,000 to repair the motor home.

Searcy was confronted at trial with his deposition testimony from

September of 2018. Searcy had then testified that he could not offer any

testimony as to the condition of the wood paneling and roof at the time of

sale. He also testified that he was not going to offer a damage estimate at

trial. When asked at his deposition what it would take to repair the roof, he

answered that it would cost between $800 and $1,300 to clean and reseal it.

At trial, Searcy explained that this estimate was what it would cost to stop

the roof from leaking, not to fully repair it. He also explained he was only

asked for an opinion on the damages and not an estimate at the time of his

deposition. He had done only a rough estimate by then, but did not bring it

to the deposition.

A photo in evidence showed scratches on the new floor in front of a

slide. Mobley thought the scratches were from the slide dragging across the

new floor and was an indication that the slide was out of adjustment. He
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explained that the slide was moving across at a different height and scraping

the floor. Lawrence denied that the photo showed scratches, but said it

merely looked like sunshine on the floor in the photo. Searcy thought the

scratches could have been made by a staple or screw being caught under the

slide, and believed the scratches had nothing to do with any alleged

misalignment of the slides.

JUDGMENT

On July 3, 2019, the trial court rendered judgment dismissing

Lawrence’s redhibition and unfair trade practices claims. Lawrence

appealed the judgment.

The trial court provided oral reasons for denying the unfair trade

practices claim at the conclusion of the trial on May 1, 2019. The trial court

found that Lawrence failed to prove a violation of the Louisiana Unfair

Trade Practices Act (“LUPTA”) by a preponderance of the evidence. There

was no evidence that Maxwell tried to be deceitful, misrepresent anything,

or engage in any type of fraudulent conduct when trying to sell the motor

home.

The trial court noted that Maxwell was on notice in late 2013 that

there may be a problem with the roof and he knew that he had not

maintained it in accordance with the manual. He tried to address the issue,

albeit with silicone caulk. However, there was no indication to him that the

roof was leaking. Moreover, no damage was noticed by Sivils, Mobley, or

Lawrence when the motor home was at Hope’s. In light of the testimony as

a whole, the trial court could not find any effort by Maxwell to defraud

anyone or be deceptive. It was noted that Maxwell had volunteered the

information about the engine work to Sivils.
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On June 26, 2019, the trial court provided oral reasons for denying the

redhibition claim. It concluded: (1) Maxwell was a good faith seller; and (2)

Lawrence failed to prove by a preponderance of the evidence that there was

a redhibitory defect on the date of the sale that rendered the motor home

useless or unfit for the purpose for which it was purchased.

The trial court determined that Maxwell’s testimony that he never

noticed water damage to the walls or anything indicating major damage to

the roof was corroborated by Sivils. Moreover, Lawrence himself did not

notice any water damage, stains, mold, mildew, or musty odor.

The trial court concluded that while some water came into the motor

home, a lot of the water probably came in as a result of the flooring work

being done during the storm. The court did not think it was sensible to

install the new floor at that time.

There was nothing in the record, including Mobley’s and Searcy’s

testimony, which aided the court in determining the nature and extent of the

alleged redhibitory defect on the date of the sale. There was no credible

evidence to substantiate that the alleged redhibitory defect manifested itself

within three days of the purchase. The trial court stated that the mere fact

that there might have been slight damage to the roof, not visible to anyone

and not noticed by Lawrence, Maxwell, or Sivils, did not make it a

redhibitory defect.

The trial court found Maxwell to be a credible witness who disclosed

what he knew based on his visual observations. The trial court did not find

Searcy to be entirely credible. The court considered Searcy to have been

truthful when he testified at his deposition that it would take no more than

$1,300 to repair the roof and he did not know if it was necessary to repair the
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entire roof. However, the court did not find Searcy’s trial testimony that the

roof repair would cost at least $9,000 to be credible.

The trial court found that Sivils told Lawrence that it was an “as is”

sale, and that if Lawrence had any concerns about it then he should have

taken whatever precautions a reasonable person would have taken under the

circumstances. The trial court also found that Lawrence failed to act as a

prudent administrator by not covering the motor home or getting the roof

repaired. Lawrence could have used some of the $6,000 that he received

from the sale of the trade-in to fix the roof and/or repair some of the interior

damage instead of allowing the motor home to further decay.

DISCUSSION

Redhibition

A warranty against redhibitory defects in things sold is set forth in La.

C.C. art. 2520, which states:

The seller warrants the buyer against redhibitory defects, or
vices, in the thing sold.
A defect is redhibitory when it renders the thing useless, or its
use so inconvenient that it must be presumed that a buyer would
not have bought the thing had he known of the defect. The
existence of such a defect gives a buyer the right to obtain
rescission of the sale.
A defect is redhibitory also when, without rendering the thing
totally useless, it diminishes its usefulness or its value so that it
must be presumed that a buyer would still have bought it but for
a lesser price. The existence of such a defect limits the right of a
buyer to a reduction of the price.

The warranty against redhibitory defects covers only defects that exist

at the time of delivery. The defect shall be presumed to have existed at the

time of delivery if it appears within three days from that time. La. C.C. art.

2530.

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Lawrence argues on appeal that the trial court erred by confusing

existence of a redhibitory defect with the occurrence of damages from the

defect. Lawrence maintains that it was obvious from the evidence that on

the date of the sale, the motor home had the redhibitory defect of a

chronically leaking roof because of poor maintenance. Lawrence contends

that it was not necessary for him to prove that a substantial amount of the

damage occurred prior to the sale. He further contends this error was

compounded by the court’s manifest error in crediting Maxwell’s testimony

that there was no leak on the date of delivery. Lawrence also maintains the

trial court erred in giving weight to the alleged “as is” condition.

The existence of a redhibitory defect is a question of fact and should

not be disturbed on appeal in the absence of manifest error. Blair v. Bad Boy

Inc., 48,953 (La. App. 2 Cir. 4/9/14), 137 So. 3d 1223.

An appellate court may not set aside a trial court’s finding of fact in

the absence of manifest error or unless it is clearly wrong. Where two

permissible views of the evidence exist, the factfinder’s choice between

them cannot be manifestly erroneous or clearly wrong. Cole v. State Dept.

of Public Safety & Corr., 01-2123 (La. 9/4/02), 825 So. 2d 1134; Stobart v.

State through Dept. of Transp. & Dev., 617 So. 2d 880 (La. 1993).

To reverse a factfinder’s determination, the appellate court must find

from the record that a reasonable factual basis does not exist for the finding

of the trial court and that the record establishes that the finding is clearly

wrong. Stobart, supra. Even if an appellate court may feel its own

evaluations and inferences are more reasonable than the factfinder’s,

reasonable evaluations of credibility and reasonable inferences of fact should

not be disturbed upon review where conflict exists in the testimony. Cole,
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supra; Rosell v. ESCO, 549 So. 2d 840 (La. 1989). Moreover, where the

factfinder’s conclusions are based on determinations regarding credibility of

the witnesses, the manifest error standard demands great deference to the

trier of fact because only the trier of fact can be aware of the variations in

demeanor and tone of voice that bear so heavily on the listener’s

understanding and belief in what is said. Rosell, supra. The trial judge, in

the present case, specified much in the realm of factual determinations and

the weighing of witness credibility.

The timing of water damage is properly part of the inquiry into

whether there was a redhibitory defect at the time of delivery. This is so

because absent someone going on the roof to examine it, water penetration

would be the primary indicator that the roof may be defective. The evidence

established that the original roof sealant for this 2005 motor home would

have been fully effective for only a few years. The silicone caulk applied at

Maxwell’s direction in 2014 would have reduced the amount of water

leaking through a crack in the sealant, but it would not have sealed the leak.

The roof would have had its protrusions lined with presumably failing

sealant for many years. However, no significant water intrusion was noticed

until the storm. We also note that Searcy testified that he found large cracks

around nearly every roof protrusion, yet the water damage did not appear to

be widespread shortly after the storm. Rather, it seemed to be concentrated

at the front section of the motor home. This supports Mobley’s assertion

that a large amount of water entered the interior through a gap in one of the

slides, which were apparently located near the front seats.

An “as is” stipulation, especially in a sale of a used thing, means that

the thing is not warranted to be in perfect condition and free of all defects
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which prior usage and age may cause. Sanders v. Sanders Tractor Co., Inc.,

480 So. 2d 913 (La. App. 2 Cir. 1985).

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.

La. C.C. art. 2548. 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. Id.

To be effective, a waiver of warranty must: (1) be written in clear and

unambiguous terms; (2) be contained in the contract; and (3) either be

brought to the attention of the buyer or explained to him. Wilks v. Ramsey

Auto Brokers, Inc., 48,738 (La. App. 2 Cir. 1/15/14), 132 So. 3d 1009.

The trial court found that Sivils told Lawrence about the “as is”

condition of the sale. However, this condition was not reduced to writing

and could not have operated as a waiver of the warranty against a redhibitory

defect. Nevertheless, this condition does have some significance.

We note that a seller owes no warranty for defects in the thing that

were known to the buyer at the time of the sale, or for defects that should

have been discovered by a reasonably prudent buyer of such things. La.

C.C. art. 2521.

As this court stated in Decker v Melton, 52,213, p.4 (La. App. 2 Cir.

8/15/18), 253 So. 3d 856, 859, writ denied, 18-1530 (La. 12/3/18), 257 So.

3d 190:

Apparent defects that could have been discovered by simple
inspection are not redhibitory. A simple inspection is more
than a casual observation; it is an examination of the article by
the buyer with a view of ascertaining its soundness. Whether an
inspection is reasonable depends on the facts of each case and
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includes such factors as the knowledge and expertise of the
buyer, the opportunity for inspection, and the assurances made
by the seller.

Citations omitted.

If the roof was in as poor shape as Searcy maintained, then its

condition should have been apparent to someone examining it. Lawrence

was apparently not curious about whether the motor home leaked, even after

Sivils asked him if the trade-in leaked. Lawrence seemed to be most

concerned about the condition of the drivetrain. He also focused on the

slides and other electrical parts. Lawrence admitted it was a big mistake not

to get an inspection before buying the motor home.

The trial court thought $65,000 was a reasonable value for the motor

home. Considering that Lawrence retrieved his trade-in from Hope’s,

Lawrence obtained the motor home for $45,000. The water damage did not

affect the motor home’s function as a motor vehicle as it could still be

driven. Lawrence has taken few steps to prevent further damage to the

motor home. Other than the temporary tarp, he has taken no steps to protect

it from further water damage, even though it would cost around $2,000 to

reseal the roof. Meanwhile, he spent $1,000 on batteries for the motor

home.

Based on our review of the record, we cannot conclude that the trial

court was manifestly erroneous in finding that Lawrence failed to establish a

redhibitory defect.

Unfair trade practices

Lawrence contends that Maxwell’s testimony that the motor home did

not leak is not credible. He further argues that the evidence strongly shows

that Maxwell acted in affirmative bad faith. Lawrence maintains that
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Maxwell knew the motor home had been leaking long enough to cause

interior damage and decided to sell the motor home anyway. He then

attempted to shield himself from liability by selling it through a consignment

sale.

La. R.S. 51:1405(A) declares that unfair methods of competition and

unfair or deceptive acts or practices in the conduct of any trade or commerce

are unlawful. A private right of action for claims of unfair or deceptive trade

practices is found in La. R.S. 51:1409(A).

Acts constituting unfair or deceptive trade practices are not

specifically defined in the LUTPA but are determined on a case-by-case

basis. Cupp Drug Store, Inc. v. Blue Cross and Blue Shield of La., Inc.,

49,482 (La. App. 2 Cir. 1/7/15), 161 So. 3d 860, writ denied, 15-0571 (La.

5/22/15), 171 So. 3d 249. In general, acts which constitute unfair trade

practices involve fraud, deception, misrepresentation, breach of fiduciary

duty, or other unethical conduct. Action Revenue Recovery, L.L.C. v.

eBusiness Group, L.L.C., 44,607 (La. App. 2 Cir. 8/19/09), 17 So. 3d 999.

The trial court’s denial of the unfair trade practices claim was not

manifestly erroneous. There is no evidence that Maxwell acted with any

intent to defraud or deceive anyone about the condition of the motor home.

It is difficult to imagine that shortly before offering the motor home for sale,

Maxwell would spend $10,000 to repair an engine, yet would knowingly

conceal a roof condition that could have been resolved by spending around

$2,000.

CONCLUSION

For the foregoing reasons, the judgment is AFFIRMED at Lawrence’s

costs.
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