Jessup v. Ketchings

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
March 16, 2007
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk

No. 05-30833

JULIA B. JESSUP

Plaintiff - Appellant

v.

WALTER H. KETCHINGS

Defendant - Appellee

Appeal from the United States District Court
for the Eastern District of Louisiana, New Orleans
No. 2:04-CV-1069

Before JONES, Chief Judge, and REAVLEY and PRADO, Circuit Judges.

PRADO, Circuit Judge:

Plaintiff-Appellant Julia B. Jessup (“Jessup”) purchased a

triplex in the French Quarter from Defendant-Appellee Walter H.

Ketchings (“Ketchings”) and later discovered extensive damage to

the property, including termite damage and water damage from a

broken roof drain pipe. Jessup brought an action under Louisiana

law against Ketchings seeking a reduction in the purchase price

due to these redhibitory defects.

Exercising diversity jurisdiction under 28 U.S.C. § 1332,

the district court granted summary judgment in favor of Ketchings

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on Jessup’s claims. Jessup now appeals. For the reasons that

follow, we AFFIRM in part and REVERSE and REMAND in part.

I. FACTUAL AND PROCEDURAL BACKGROUND

This appeal arises out of the sale of a multi-story triplex

consisting of three residential apartments, units 510A, 510B, and

512, located in the French Quarter of New Orleans, Louisiana. In

2002, Ketchings listed the property for $495,000. The property,

portions of which were over 100 years old, was listed in “mint,”

“pristine,” and “perfect” condition. The Property Disclosure

Addendum (“Disclosure Addendum”), signed by Ketchings on October

30, 2002, stated that the “[s]eller[] elect[s] to sell property

‘As is’ with full waiver of redhibition rights in act of sale

. . . .” On the Disclosure Addendum, Ketchings checked “yes” in

response to whether the property had “ever had termites or other

wood destroying organisms.”

Jessup visited the property on one occasion. Thereafter,

she negotiated a contract with Ketchings to purchase the

property, reserving the right to have various inspections

performed. On December 5, 2002, she signed an “Agreement to

Purchase or Sell,” offering to purchase the triplex for $475,000.

She also signed the Disclosure Addendum, acknowledging that she

had read the seller’s disclosures.

After further negotiations, on December 13, 2002, the

parties executed a second “Agreement to Purchase or Sell,” in

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which Jessup agreed to purchase the triplex for $465,000. An

addendum to the second agreement explained that the purchase

price had been reduced for replacement of the roof on the main

building of the triplex and that Jessup had ten working days to

complete her property inspections.

Jessup obtained several reports on the condition of the

property. On December 18, 2002, Edwin Gary Wehlen (“Wehlen”),

the co-owner of E&G Pest Control, Inc. (“E&G”), inspected the

property and prepared a termite inspection report for Jessup.

The E&G report noted that it was “made on the basis of what was

visible and accessible at the time of the inspection” and

cautioned that “[i]f visible evidence of active or previous

infestation of listed wood destroying insects is

reported/indicated on graph, it should be assumed that some

degree of damage is present, visible or not.” The report had a

check mark next to the statement “[g]et termite history on the

home from whomever has the termite contract. This is your

responsibility as a purchaser.”

In the E&G report, Wehlen commented that “sub-flooring 2nd

floor termite damaged and broken tiles, Recommended exposing this

area for further termite damages.” Wehlen later explained in an

affidavit that his handwritten statement on sub-floor and tile

damage was limited to the kitchen of unit 512.

On December 18, 2002, Jessup also received a property

inspection report from consulting engineer Michael K.A. Gurtler

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of Gurtler Brothers Consultants, Inc. (“Gurtler report”). The

Gurtler report cautioned that it “can only include visible

elements and conditions and does not purport to cover

inaccessible areas or hidden damage. It is not intended to

replace, supersede or include the contents of a formal disclosure

statement and we highly recommend that such a disclosure

statement be obtained.” The report also noted that Mr. B

Services had the contract for the control of termites on the

property, and advised that Jessup should contact them to

determine the history of termite treatment and any previous

infestation of the house.

The Gurtler report identified problems with the following

areas:

Termite damages, identified by E&G Pest Control in their
report dated 12/18/02, were noted to the left front
corner of the apartment 510A living room, the wood base
at the stairs of apartment 510B, the left front corner of
the ceiling in apartment 510B bath, the flooring in
apartment 510B bath near the closet and the walls and
floors of apartment 512 of the utility area and kitchen.

It recommended that the damage to the walls in the living room of

unit 510A “be further investigated by removing the effected [sic]

sheetrock and checking the condition of the wood framing behind

the sheetrock.” It also mentioned damages to the wood and

ceramic floors in unit 510B, noting that the ceramic floors are

cracked and uneven and that damage may exist to the framing below

the ceramic and the framing above the ceiling materials. With

respect to these problems, the report suggested that “[f]loors

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and ceilings should be opened and repaired as necessary.”

Finally, the report noted that “[d]amages to the wood floor in

apartment 512 at the front of the refrigerator in the kitchen

appear substantial” and that “[t]he ceramic floors are also

cracked and uneven.” It warned that “[d]amages may exist to the

framing below the ceramic and the framing. Floors should be

opened and repaired as necessary.”

In the description next to unit 512 (which is located on the

upper levels of the triplex), the Gurtler report stated that

“[t]he stairwell plaster is considerably moisture deteriorated.

This may be caused by leakage of the parapet walls above or by

water ‘wicking’ or rising from the ground below through the load-

bearing brick walls.” The report noted moisture damage in unit

510B on the ceilings of the rear bedroom and bathroom, as well as

on the right wall of the breakfast room. The report also

explained that “much of the plumbing system is underground or

behind the walls and is therefore not visible for inspection.”

On December 26, 2002, Jessup submitted to Ketchings a

Property Condition Clause Response, which identified the problems

disclosed by the E&G and Gurtler reports, and asked Ketchings to

comply with an addendum prepared by Dorian M. Bennett, Inc.

(“Bennett Addendum”). The Bennett Addendum stated in relevant

part:

-Apt. 510A, further investigate damages to walls as
recommended. Have interior inspected by Gurtler Bros.
and E&G Pest control when wall is opened, and repaired

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 and/or treated as per their specifications.

-Apt. 510B, further investigate damage to wood floors,
have inspected by Gurtler Bros. and E&G when opened, and
repaired and/or treated as per their specifications.

-Apt. 512, further investigate damages to the wood floor
in kitchen, have inspected by Gurtler Bros. and E&G when
opened, and repaired and/or treated as per their
specifications.

Ketchings did not want to comply with the Bennett Addendum;

instead, he initially offered to reduce the purchase price of the

triplex by an additional $10,000. On January 10, 2003, the

parties agreed that Ketchings would not be responsible for the

work identified in the Bennett Addendum. In exchange, the

parties negotiated that Jessup would be credited $12,000 toward

the purchase price.

On January 22, 2003, Mr. B Services, the company that had

performed termite extermination on the property since May 13,

1991, and that had a termite contract on the property through

October 30, 2003, provided Jessup with a Wood Destroying Insect

Report (“WDIR”). The WDIR had a check mark next to the box

stating “[v]isible evidence of wood destroying insects was

observed,” and noted, in the space provided for “[e]vidence found

and its location” that “scaring [sic] on stud in closet of 512

unit upstairs common wall.” The report also stated that

“[v]isible evidence of damage due to sub termites has been

observed in the following areas[:] studs in closet of 512 unit

upstairs common wall front corner.” The WDIR cautioned that

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“[i]f there is any evidence of wood destroying insects in the

structure(s) inspected, it must be assumed that there is some

damage.” The terms and conditions section of the WDIR further

warned that

[i]f there is evidence of active infestation or past
infestation of termites and/or other wood destroying
insects it must be assumed that there is some damage to
the building caused by this infestation, even if the
damage is not visible to the inspector as of the date of
the inspection.

Jessup signed the WDIR, indicating she had received an original

copy.

On January 31, 2003, the parties executed the Act of Sale.

The Act of Sale reflected a final purchase price of $451,912.50.

It did not include the waiver of redhibition language contained

in the Disclosure Addendum.

After taking possession of the property, Jessup discovered

extensive damage which she claims was not disclosed during her

inspections. Jessup found termite damage in units 512 and 510A

to certain floors, walls, windows, and ceilings.1 Jessup also

discovered a broken roof drain pipe located in the wall of unit

510B, resulting in water leaking into and under that unit. The

broken roof drain pipe resulted in damage to the foundation of

the property and in erosion of soils under unit 510B and the

1
Jessup alleges that she discovered the termite damage
after she was exercising in unit 512 and noticed that the floor
felt soft. Jessup claims that she discovered the extent of the
damage after she had the contractor open up the floors.

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sidewalk and porch of the property.2

On January 30, 2004, Jessup brought an action in Louisiana

state court against Ketchings to recover for the redhibitory

defects, seeking quanti minoris damages for a reduction in the

purchase price of the property based on the termite and broken

roof drain pipe damage. Ketchings removed the case to federal

court based on diversity jurisdiction under 28 U.S.C. § 1332.

Thereafter, both parties filed motions for summary judgment.

On February 18, 2005, the district court granted summary

judgment in favor of Ketchings on both of Jessup’s claims. The

district court held that Jessup could not recover for the termite

damage to the property because the E&G report placed Jessup on

notice of termite damage and the presence of active termites, and

that such notice required Jessup to further investigate the

extent of the damage. The court also held that Jessup could not

recover for the water damage to the property resulting from the

broken roof drain pipe because her complaint did not state a

claim for the defect.

On February 24, 2005, Jessup filed a motion for a new trial.

2
Jessup claims that she learned of the broken roof drain
pipe when the tenant in unit 510B advised her that water was
coming into the unit every time it rained. According to Jessup’s
deposition, the extent of the damage was not discovered until a
video was sent through the pipe, revealing stoppage and breakage
in the drain about four feet off the floor in unit 510B. During
excavation of the property to install an elevator in the front of
the building, Jessup’s contractor found that the line was crushed
and was dumping water under the sidewalk and the building.

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Jessup argued that the district court erred in finding that the

E&G report contained evidence of live termite activity because

the E&G report actually indicated that there were no active

termites. Jessup also maintained that the district court should

have addressed her claim for damages caused by the broken roof

drain pipe because that issue was preserved in the joint pre-

trial order signed by both parties and constituted a separate and

independent basis for redhibitory relief.

On July 22, 2005, the district court granted in part

Jessup’s motion and amended its February 18, 2005, order and

reasons. The district court, however, stood by its conclusion

that summary judgment in favor of Ketchings was appropriate. The

district court held that although the E&G report did not indicate

active termites, Jessup nevertheless was aware of past termite

damage and had an obligation to further investigate. The

district court also held that the water and moisture damage noted

in the Gurtler report placed Jessup on notice that the

possibility of the broken roof drain pipe existed, and that

Jessup failed to further investigate the problem. The district

court concluded that because the inspection reports placed Jessup

on notice of the termite and roof drain pipe problems prior to

the sale and because she failed to further investigate the

problems, she waived her right to sue for a reduction in the

purchase price based on the damage.

Jessup filed this timely appeal, challenging the district

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court’s grant of summary judgment on both claims. This court has

jurisdiction over the district court’s final judgment pursuant to

28 U.S.C. § 1291.

II. STANDARD OF REVIEW

We review de novo a district court’s grant of summary

judgment. United Fire & Cas. Co. v. Hixson Bros. Inc., 453 F.3d

283, 284 (5th Cir. 2006). The district court’s grant of summary

judgment is appropriate if the record shows “‘that there is no

genuine issue as to any material fact and that the moving party

is entitled to a judgment as a matter of law.’” Id. at 285.

(quoting FED. R. CIV. P. 56(c)); see also Celotex Corp. v.

Catrett, 477 U.S. 317, 322-23 (1986). The court “views the

evidence in the light most favorable to the non-movant.” Abarca

v. Metro. Transit Auth., 404 F.3d 938, 940 (5th Cir. 2005).

III. DISCUSSION

A. Louisiana Law on Redhibitory Defects

Under Louisiana law, the seller of a home impliedly warrants

to the buyer that the property is free from redhibitory defects

or vices. LA. CIV. CODE ANN. art. 2520. A defect is redhibitory

when it renders the property useless, or renders its use so

inconvenient that it must be presumed that a buyer would not have

purchased the property had she known of the defect. Id. Such a

defect gives the buyer the right to obtain rescission of the

sale. Id. A defect also is redhibitory, entitling the buyer to

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recover quanti minoris damages for a reduction in the purchase

price of the property, when, without rendering the property

totally useless, the defect diminishes the property’s utility or

its value so that it must be presumed that a buyer would still

have purchased the property but for a lesser price. Id.; see

Lindy Invs., LP v. Shakertown Corp., 209 F.3d 802, 806 (5th Cir.

2000).

Not all redhibitory defects justify a rescission of the sale

or a reduction in the price. Defects in the property that were

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

should have been discovered through a simple inspection of the

property, are excluded from the seller’s legal warranty. LA.

CIV. CODE ANN. art. 2521; see Amend v. McCabe, 664 So. 2d 1183,

1188 (La. 1995). Stated differently, “when the defect complained

of is partially apparent, the buyer who, nevertheless, purchases

the thing without further investigation must be held to have

waived his right to sue in quanti minoris.” Pursell v. Kelly,

152 So. 2d 36, 41 (La. 1963).

Simple inspection involves more than a casual observation.

Amend, 664 So. 2d at 1188 (stating that a simple inspection “is

an examination of the article by the buyer with a view of

ascertaining its soundness”). “Rather, it requires the buyer who

observes defects to conduct further investigation as would be

conducted by a reasonably prudent buyer acting under similar

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circumstances. Whether an inspection is reasonable depends upon

the facts of the case.” Lemaire v. Breaux, 788 So. 2d 498, 501

(La. Ct. App. 2001).

B. Jessup’s Redhibitory Defect Claims

1. Termite Damage Claim

Jessup argues that the termite damage in units 512 and 510A

was concealed and none of the property inspectors discovered the

extent of the damage prior to the sale. Jessup contends that the

district court erred in holding that she was required to further

investigate based on the termite damage identified in the reports

to other areas of the triplex. Jessup also claims that Ketchings

is a bad faith seller in failing to disclose the termite damage.

Ketchings responds that Jessup acknowledged in her

deposition that she received the reports and was aware of the

termite damage listed in the reports, including the WDIR.

According to Ketchings, if the buyer obtains information from an

inspector evidencing some damage, the buyer’s decision to forego

further inspection operates as a waiver of a more substantial

problem that is later revealed. We agree.

Louisiana law makes clear that when some of the damage is

detectable by a simple inspection, the buyer has a duty to

investigate further. Amend, 664 So. 2d at 1188. If the buyer

chooses to purchase the property without further investigation,

she waives the right to sue for rescission of the sale or a

reduction in the purchase price based on later discovered damage.
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Id.

In Brandao v. McMahon, 857 So. 2d 1 (La. Ct. App. 2003), the

Louisiana appellate court faced a case with similar facts and

issues. There, the buyers received a property disclosure form

indicating that there was termite damage to the property. Id. at

2. Additionally, the buyers signed a WDIR, disclosing that the

property had visible evidence of wood destroying insects. Id.

After moving in and discovering extensive termite and water

damage behind the walls, the buyers filed a redhibitory action

against the sellers, seeking a reduction in the purchase price.

Id. The buyers contended that the property inspectors did not

find any termite damage out of the ordinary and did not recommend

an inspection behind the walls where the damage was eventually

discovered. Id. at 4. The buyers argued that their knowledge of

some termite damage did not prohibit them from recovering in

redhibition. Id. at 5.

The Louisiana court disagreed. It pointed out that all of

the inspection reports revealed some type of damage to the

property, including active termites and evidence of termite

damage. Id. at 4. The court determined that “[e]vidence of

‘shoddy’ work and reports of damage of any kind should have

prompted a reasonably prudent buyer to further investigate the

damage and perhaps conduct further inspections in order to obtain

more professional opinions.” Id. at 5. According to the court,

the buyers “had a duty to perform further inspections once the

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home inspections revealed damage. Their failure to do so

indicates a tacit acceptance evidencing that they were willing to

purchase the property as the inspections revealed without further

investigation.” Id. at 6.

We find Brandao on point and persuasive. Here, similar to

Brandao, the termite damage was not entirely concealed. Rather,

all of the reports made available to Jessup prior to the sale

indicated some termite damage to the triplex. First, Jessup

received and signed the Disclosure Addendum, in which Ketchings

had checked “yes” in response to whether the property had “ever

had termites or other wood destroying organisms.” Second, Jessup

obtained the E&G report, documenting termite damage in the

kitchen of unit 512 and advising Jessup to get the termite

history of the property. The report further warned that given

the evidence of termite damage, “it should be assumed that some

degree of damage is present, visible or not.” Third, Jessup

received the Gurtler report, which identified termite damage in

various areas throughout the three units. The Gurtler report,

like the E&G report, advised Jessup to contact Mr. B Services to

determine the history of termite treatment and any previous

infestation of the house. It also recommended that Jessup obtain

the property disclosure statement, which she had already reviewed

and signed. Finally, Jessup received and signed a copy of the

WDIR from Mr. B Services. The WDIR had a check mark next to the

box indicating that “[v]isible evidence of wood destroying

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insects was observed.” It also stated that there was scarring on

a stud in the closet of unit 512. The WDIR, like the other

inspection reports, warned that “[i]f there is evidence of . . .

past infestation of termites and/or other wood destroying insects

it must be assumed that there is some damage to the building

caused by this infestation, even if the damage is not visible to

the inspector as of the date of the inspection.” Because the

reports and Disclosure Addendum made Jessup aware of termite

damage,3 she had a duty to investigate further. Her failure to

do so is inexcusable under Louisiana law. See Brandao, 857 So.

2d at 5 (noting that “reports of damage of any kind should have

prompted a reasonably prudent buyer to further investigate the

damage”).

Jessup argues that her case is more like Tarifa v. Riess,

856 So. 2d 21 (La. Ct. App. 2003), and David v. Thibodeaux, 916

So. 2d 214 (La. Ct. App. 2005), because the extensive termite

damage was concealed within the property and not apparent to

anyone who examined the property prior to the sale. In Tarifa,

the inspection reports revealed no signs of active infestation or

termite damage, and the sellers represented that the house was

under a termite contract and that there were no termite problems

with the property. 856 So. 2d at 23-25. The Tarifa court

3
Jessup acknowledged in her deposition that she had
reviewed these reports, but she admitted that she had not asked
to see the Mr. B Services records.
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concluded that the extensive termite damage discovered after the

buyer purchased the house was non-apparent because none of it

could be seen without removing the sheetrock. Id. at 24-25. The

court determined that the termite damage could be classified as a

redhibitory defect, entitling the buyer to a reduction in the

purchase price. Id. at 25.

In David, the WDIR indicated old termite damage and scars in

three locations in the house. 916 So. 2d at 217. After the

buyers questioned the seller about the report, the seller took

the buyers to all three areas and told them that the termites and

damage had been taken care of and that the spots were simply old

scars. Id. at 218. The seller’s representations about the

damage were consistent with the professional inspection reports

and the property disclosure statement, which indicated that

termite damage was discovered and repaired in 1990. Id. The

David court held that the trial court did not err in determining

that the active termites and termite damage were a latent defect,

entitling the buyer to a reduction in the purchase price. Id. at

219.

The present case is clearly distinguishable from these

cases. Here, the inspection reports and the Disclosure Addendum

received by Jessup indicated some visible termite damage. Thus,

unlike in Tarifa, the termite damage was not totally concealed

within the sheetrock. Although the inspection reports did not

reveal evidence of active termites, such evidence is not required

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under Louisiana case law to trigger the duty to further

investigate. See Amend, 664 So. 2d at 1188 (“[W]hen some of the

termite damage is detectable by a simple inspection, the buyer

has a duty to investigate further. If he chooses to purchase the

home without further investigation, he waives the right to sue

for redhibition or reduction based upon the termite damage.”).

Finally, unlike in Tarifa and David, Jessup never alleged that

Ketchings made representations that there were no termite

problems with the property or that the scarring in unit 512 was

simply an old scar not worthy of further investigation.

Cf. David, 916 So. 2d at 218 (“[I]f the seller represents that

suspected defects have been corrected, and simple inspection

establishes these representations to be accurate, the buyer need

not investigate further.”). In fact, the record does not

indicate that Jessup ever asked Ketchings about the termite

damage identified in the reports or the past infestation

disclosed in the Disclosure Addendum.

Jessup’s argument that Ketchings is a bad faith seller in

that he failed to disclose the termite damage is also unsupported

by the record. Ketchings indicated on the Disclosure Addendum

that the property had “had termites or other wood destroying

organisms.” In addition, Mr. B Services, the exterminator

Ketchings had under contract for the property, provided Jessup

with the WDIR, which noted that “[v]isible evidence of wood

destroying insects was observed,” and that the property was to be

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treated under its current contract. Finally, Ketchings testified

that he was not aware of these problems, but that had he known of

these problems, he would have disclosed them. Given this record

evidence, it is clear that Ketchings provided Jessup with

information that there was termite damage.

Because Jessup failed to investigate further after she was

aware of some termite damage, she waived her right to sue for a

reduction in the purchase price based upon the termite damage.

See Amend, 664 So. 2d at 1188. Accordingly, the district court

did not err in granting summary judgment in favor of Ketchings on

Jessup’s termite damage claim.4

2. Broken Roof Drain Pipe Claim

Jessup next argues that the broken roof drain pipe, which

resulted in water leaking into and under unit 510B and in water

damage to the foundation, sidewalk, and front porch of the

property, was hidden and non-apparent. Jessup contends that the

district court erred in concluding that the Gurtler report placed

her on notice that the possibility of water damage existed and

that she waived this claim by failing to further investigate the

problem. Jessup claims that the damage identified in the Gurtler

report is not in the same area of the property as the roof drain

pipe. Finally, Jessup maintains that Ketchings is a bad faith

4
Because we hold that summary judgment was proper on
Jessup’s termite damage claim, we need not address Ketchings’s
remaining arguments on this claim.
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seller because he failed to disclose that water was leaking into

unit 510B when it rained.

Ketchings responds that the district court properly granted

summary judgment on this claim because Jessup waived her right to

recover for this redhibitory defect by failing to further

investigate the cause of the water damage. Ketchings asserts

that the Gurtler report placed Jessup on notice that this problem

existed when the report noted damages to the wood and ceramic

floors in unit 510B, moisture damage to the rear bedroom ceiling

in unit 510B, moisture staining to the right wall of the

breakfast room in unit 510B, moisture damage in the bedroom in

unit 510A, and water damage to the stairwell plaster in unit 512.

As with the termite redhibitory claim, “[a]pparent defects,

which the buyer can discover through a simple inspection, are

excluded from the seller’s legal warranty.” Amend, 664 So. 2d at

1188; see also LeMaire, 788 So. 2d at 501 (applying this standard

to a redhibitory defect based on water damage from a leaky roof).

To determine whether a defect is apparent, the court considers

whether a reasonably prudent buyer, acting under similar

circumstances, would have discovered the defect through a simple

inspection of the property. Amend, 664 So. 2d at 1188. If all

of the damage is concealed within the property’s structure, it is

considered unapparent because it is not discoverable by a simple

inspection. Id. In such situations, the buyer has no obligation

to further investigate. Id. On the other hand, when some of the

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damage is detectable by a simple inspection, the buyer has a duty

to inspect further. Id. If the buyer chooses to purchase the

property without further investigation, she waives the right to

sue for rescission of the sale or a reduction in the purchase

price based upon the damage. Id.

In this case, the inspection of the property did not reveal

any of the damages associated with the broken roof drain pipe in

the wall of unit 510B. Rather, the damages caused by the pipe

were not apparent defects and were discovered only through

running a video down the drain and excavation of the property.

The notations in the Gurtler report, relied upon by the

district court and by Ketchings, do not point to the broken roof

drain pipe as the source of the damages identified in the report

because those damages are not in the same location as the pipe.

The damages to the wood and ceramic floors in unit 510B refer to

the bath near the closet on the second level, nowhere near the

location of the broken roof drain pipe. The moisture damage to

the bath ceiling and rear bedroom ceiling in unit 510B is also

located on the second level.5 The moisture damage to the left

wall of the bedroom in unit 510A is on the second level, not even

5
The location of the breakfast room in unit 510B is not
apparent from the floor plans located in the record. Even
assuming it is on the first level near the kitchen in unit 510B,
there is nothing in the record to indicate that the “moisture
staining” on the “right wall of the breakfast room” has anything
to do with the drain pipe, and Gurtler’s affidavit supports this
view.
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on the common wall shared by the units. Finally, the water

damage in unit 512 also appears to be unrelated to the roof drain

problem because unit 512 is located on the upper levels of the

triplex and is not in close proximity to the site of the broken

pipe.

Our conclusion that the damage identified in the report is

different from that caused by the broken roof drain pipe is

confirmed by the affidavit of Michael K.A. Gurtler (“Gurtler”),

who performed the inspection of the property and prepared the

Gurtler report for Jessup. Gurtler explained that “he observed

no evidence of flooding or other problem in unit 510B which would

have served as the basis for further inquiry” and asserted

“[t]hat he was not aware of any damage to or blockage whatsoever

of the roof drain line.” Gurtler further averred that “erosion

damages beneath unit 510B and beneath the sidewalk and front

porch of the property . . . were hidden beneath the slab and the

sidewalk and were not apparent to him and were not discoverable

from a visual inspection of the property . . . .”

Nothing in the reports placed Jessup on notice that this

problem existed. Accordingly, the district court erred in

holding that Jessup waived her right to recover for this

redhibitory defect. See Amend, 664 So. 2d at 1188.6 Because we

6
We also are not persuaded by Ketchings’s equitable
argument on express waiver. See Appellee’s Br. at 20. The
district court correctly concluded that Jessup did not expressly
waive the warranty against redhibitory defects because the Act of
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conclude that the district court erred in granting summary

judgment on this claim, we need not reach Jessup’s argument that

Ketchings is a bad faith seller with respect to the broken roof

drain pipe. We also express no view on Ketchings’s argument that

Jessup had a duty to tender the property before bringing this

claim. These issues have not been developed by the district

court, and it is not clear to us that the present record

adequately resolves these questions. Under these circumstances,

we conclude that it is preferable that the parties’ remaining

contentions with respect to the broken roof drain pipe claim be

addressed in the first instance by the district court on remand.

IV. CONCLUSION

For the reasons stated above, we AFFIRM the district court’s

grant of summary judgment on the termite damage claim, and

REVERSE and REMAND the district court’s grant of summary judgment

on the broken roof drain pipe damage claim.

AFFIRMED IN PART; REVERSED and REMANDED IN PART.

Sale does not contain the waiver of redhibition. See Williston
v. Noland, 888 So. 2d 950, 952 (La. Ct. App. 2004) (stating that
for an express waiver of redhibition to be effective under
Louisiana law, the waiver must, inter alia, “be contained in the
sale or mortgage document”).
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