Opinion
No. 90-CA-430.
March 13, 1991.
APPEAL FROM TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON, STATE OF LOUISIANA, HONORABLE CLEVELAND MARCEL, J., AD HOC.
George B. Richard, Marrero, for plaintiff/appellant.
Laurence D. Rudman, Kiefer Schneider, Metairie, William F. Bologna, New Orleans, for defendants/appellees.
Before BOWES, GAUDIN, WICKER and GOTHARD, JJ., and CURRAULT, J. Pro Tem.
This appeal arises from a judgment dismissing Ulysses A. Wire's claims against Wagner Truax Realtors Better Homes Gardens and Martha Ann Samuel Incorporated on an exception of no cause of action. Wire now appeals. We reverse and remand.
The trial judge originally sustained an exception of no cause of action filed on behalf of defendants Wagner Truax Realtors Better Homes Gardens and Martha Ann Samuel Incorporated on August 25, 1989 but allowed plaintiff leave to amend his petition so as to state a cause of action. On August 29, 1989 plaintiff filed a supplemental and amending petition. On April 10, 1990 the trial judge dismissed plaintiff's suit against these defendants on an exception of no cause of action.
In the first petition plaintiff alleges these defendants' employee and agent representative was Isaac Jackson. Isaac Jackson is alleged to be the listing and selling agent for the house purchased by plaintiff. Plaintiff alleges the house has termites and other redhibitory defects. He states these defendants had knowledge of the defects and failed to disclose them. Plaintiff seeks a rescission of the sale and damages. However, he pleads alternatively for a reduction in the purchase price. The owners/sellers of the house are also sued.
The amending petition, although more detailed, is essentially the same as the first.
Defendants/appellees argue that a suit in rescission or quanti minoris doesn't lie against a non-owner/non-seller of the house. That is correct; however, but plaintiff has set forth allegations sufficient to state a cause of action for negligence on the part of an agent for a realtor in failing to disclose the alleged defects. We have recognized such a cause of action in Ditcharo v. Stepanek, 538 So.2d 309, 313 (La.App. 5th Cir. 1989), writ denied, 541 So.2d 858 (La. 1989); Ernestine v. Baker, 515 So.2d 826 (La.App. 5th Cir. 1987).
The pleadings state a cause of action. Whether plaintiff can prevail in his proof is another matter.
Accordingly, for the reasons stated the judgment sustaining the exception of no cause of action filed on behalf of Wagner Truax Realtors Better Homes Gardens and Martha Ann Samuel Incorporated is reversed. Judgment is now rendered in favor of Ulysses A. Wire denying the exception of no cause of action and the matter is remanded to the trial court for further proceedings. Costs are assessed against appellees.
REVERSED AND RENDERED; REMANDED.
I respectfully dissent, being of the opinion that the trial judge's ruling on the exceptions was correct.