Real Estate Agent Not Liable for Defect in Alexandria Case

Paul and Anna Moreau thought they were buying a house with a 10-year-old roof. After they moved in, they learned that the roofing tiles were so old that they were no longer made. Their claim against the real estate agent, who represented both sides in the sale, failed at the trial court. In Moreau v. McKenzie, No. CA 11-197 (La. Ct. App. 3 Cir. 10/5/11), the court of appeal agreed with the trial court’s dismissal of claims against Kelly Ducote, stating the real estate agent was not liable for failure to disclose defect in sale of house in Alexandria because the agent did not know the seller’s statement was misleading.

The Moreaus purchased the home in Alexandria, La., from Mary McKenzie and Priscilla Goudeau. Ducote was agent for both buyer and seller. The property disclosure form that the Moreaus received said that the house’s roof had leaked in the past, but it was replaced in 1998-99 with “all new decking & felt replaced with 70 yr. clay tile.” A home inspection indicated that the roof was six to ten years old. The inspector found nothing serious. The sale closed. Sales documents warned that the sale was “as is” and without warranty, and Ducote made no warranty on the house or its condition.

When the Moreaus tried to repair a few broken roof tiles, “they learned that the tiles on the roof had not been manufactured for several decades, meaning the entire roof had not been ten years old as they had previously thought.” Only the underlying deck and felt had been completely replaced. The old tiles had been reinstalled over the new deck and felt.

With a house that had a “new” roof with 70-year-old tiles, the Moreaus sued the sellers, real estate agent Ducote, and her insurer. The original claims sought damages and voiding of the sale (“redhibition”). The redhibition claim against the agent failed. Ducote moved the trial court to have the remaining claims dismissed. Ducote argued that “the Moreaus had presented no evidence to support the remaining claims of fraud and negligent misrepresentation.” Ducote succeeded before the Ninth Judicial District Court, Parish of Rapides.

The duties of a real estate agent are not the same as the seller’s duties, the court of appeal explained. The buyer is more limited in claims of fraud or negligent misrepresentation against an agent. Recovery is possible when an agent breaches a duty to provide accurate information that causes damages to the buyer. The agent does not have a duty to disclose what the agent does not know.

This was the case with Ducote. She did not know that the statement on the disclosure form was false or misleading and wrote what the sellers told her. The sellers signed and attested that the disclosure form was correct. The record contains no evidence of negligent misrepresentation, the court of appeal summarized, and the Moreaus admitted in deposition that they had no evidence to show that Ducote knew that the disclosure form was false or misleading. The Moreaus “have never even spoken to the seller to determine any culpability on the part of Ms. Ducote.” The court of appeal found only speculation that Ducote breached a duty. That was not enough. No genuine issue of material fact remained, and therefore, the court of appeal affirmed the trial court’s dismissal.

The problem with the Moreau’s claims could have been reduced. A thorough investigation of potentially liable parties would have narrowed the dispute to the people most responsible. That would have saved time and money. It also may have strengthened all their claims by revealing telling facts. The more facts about who knew what would have shown a court with more clarity the validity of the Moreau’s thwarted expectations that justified a claim of misrepresentation. For any claim, an objective assessment of the value lost from 70-year-old tiles on a new roof, or physical damage caused by the broken and aging tiles, would have shown that the misrepresentation harmed the Moreaus and justify compensation.

Even claims that appear to be solid need to be scrutinized. A thorough investigation of potential claims will determine their worth, and later to improve chances of success. A lawyer will ask the right questions. Different parties to a sale may have different duties. An experienced lawyer will recognize those different duties and advise on the necessary investigation and parties to obtain just recovery.

If you have been harmed by the acts of another, call the Berniard Law Firm toll free at 1-866-574-8005 and speak with a lawyer who can help you get the recovery you deserve.

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