Clifton D. Eakin VS Rafael Azuara, Jr.
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NO 2008 CA 2579 CLIFTON D EAKIN VERSUS r RAFAEL AZUARA JR Judgment On Rendered June 12 2009 Appeal from the 21 st Judicial District Court In and for the Parish of Livingston State of Louisiana Trial Court No 119721 Honorable M Mary Douglas Hughes Judge Presiding E Heck Barrios Denham Springs Attorney for Plaintiff Appellee Clifton D Eakin LA Attorney for Defendant Appellant Shelby Easterly III Denham Springs LA A Rafael Azuara Jr CARTER C J I WHIPPLE AND DOWNING n CARTER C J Clifton D of seeking rescission of the 575 000 00 he purchasing was the property he Twenty First Judicial District Court Eakin filed suit in the a sale of immovable property purchase price 64 plus purchased he had acres Azuara knew about the acreage in the alternative reduction Mr Eakin paid alleged that he believed from Rafael Azuara Jr but the actual size of 52 7 was or Mr Eakin further acres shortage at the alleged that Mr time of the sale but withheld that information from Mr Eakin Mr Azuara failed to of Mr Eakin Mr Eakin was subsequently representing judgment the default trial to court trial new erred in find that there to The trial On an as proof that reasons matter default court Mr Azuara is awarded well as appealed as in favor 00 to 423 42 2 500 00 for to this court after essentially argues sufficient evidence alleging waiver in the Mr Azuara had vacate we judgment Mr Azuara appeal supported by find a purchase price interest denied following judgment and remand the the petition and confirmed legal not was was no For the shortage was failing to reduction in the a costs and attorney fees plus his motion for respond act and set that the of sale and in knowledge that failing of the acreage aside the trial court s for further proceedings DISCUSSION A judgment to establish Liquid Air a of default must be confirmed prima facie Corp explained that a case LSA C C P 616 So 2d 1254 plaintiff seeking required prima facie case with 1702 1258 La 1993 confirm default a petition s of the demand sufficient In Sessions the Louisiana judgment competent evidence and defendant had denied each of the both the existence and the to art by proof must allegations do The Fishman Supreme must so as v Court establish the fully plaintiff as ifthe must prove validity of the claim by presenting competent evidence 2 court that that convinces the merits it is Furthermore Id t probable that he would prevail here is a sufficient evidence but this supported by record upon which the that presumption default a does presumption presumption is to the default judgment So 2d 1019 2 27 02 a determination of 1021 Nelson Bates 818 So 2d 176 the manifest 12 23 08 Mr error 4 and it is incumbent upon inapplicable 3d So v 179 standard 872 an provided that the record title A the case court to restrict Landry 01 0552 are Boissenin v 1 Cir 9 19 07 La reviewed 08 1240 App 1 970 Cir generally under 1 Cir the confirmation of the default He App La 873 2007 hearing on introduced into evidence were 24 purchase agreement and April both of which contained property with in this as appellate App La Co Judgments of default identified several documents that 18 Indem Legion Eakin testified at the parties March Where the sufficiency of the evidence offered in support of Merrick 06 2381 v an the on judgment is Id judgment is rendered indicates otherwise hearing is transcribed and contained in the record trial attach when the not confirmation its review on a an as is act the of cash sale waiver of warranty of the condition of the express waiver of redhibition rights 1 property measured approximately 64 The act of cash sale contained a The purchase agreement acres to be controlled detailed property by description against redhibitory vices unless expressly waived a waiver ofwarranty against redhibitory defects must be clear and unambiguous the contract and brought to the attention of the buyer or explained to him LSA purchaser is entitled to 2007 including a warranty To be effective contained in CC art 2548 So 2d 1265 App Shelton 1269 affd 01 0587 La 4 Cir 1 19 96 In this case 700 Standard v 673 the waiver 2d So was Associates 16 10 01 798 202 205 writ denied contained in 00 0227 2d So App 60 Jeffers 96 1721 two contracts La v 4 Cir 1 31 01 Thorpe La 10 4 96 signed by 95 1731 778 La 679 So 2d 1390 Mr Eakin the purchase agreement and the act of cash sale document Further in the purchase agreement Mr Eakin placed his initials next to the waiver of warranty clause indicating that it was brought to his attention and Mr Eakin does not contend that he was unaware of sale document case Thus the waiver in the instant be effective 3 of the waiver appears to meet all language in the act of the requirements to outlining boundaries without stating the total acres Mr more or and less a revealed that the property testified that the survey May was was 2 2007 survey 52 70 actually prepared he would not have acres pay the full s testimony however representations regarding the did not even the size of the in the acreage deficiency prior mention Mr Azuara It is well settled that a to or Completely any discussion about Mr or 52 70 only of 575 000 00 purchase price property at was Mr Azuara the time of the sale s Mr absent Azuara knowledge s of In fact Mr Eakin throughout his testimony s name seller with knowledge of a redhibitory defect who rather than informing implied by law commits fraud which vitiates the waiver because it is not made in good faith 0765 La 96 15 3 the was Eakin Mr to the sale of the property Eakin testified about the value of the difference in the acreage from Mr Eakin from the sale for Mr Azuara which completed eight days subsequent agreed to 78 5 to referring Additionally acres Mr Eakin maintained that had he known the property acres 15 03 of those specifically excluding Eakin also identified instead acreage LSA C C App 4 Cir art 2548 14 12 95 669 So 2d 424 confirm the default buyer of the defect opts was knowledge the an Mr on the Eakin the act of cash s testimony reveal proof that Mr Ltd as of certain was as not expose to Azuara 4 the 95 La is described waiver of warranty was act less than what of cash sale sale and six weeks after the testimony did part of Mr Azuara Ventures Mr Eakin at his motion to purchase agreement and described in the eight days after agreement to waiver of warranty 1306 writ denied 96 0175 provided by subject a Montgomery that this sale judgment revealed was obtain the survey that showed that the actual acreage stated in the dated v 665 So 2d 1303 The documents immovable property and it Additionally Helwick to any actual deficiency or purchase constructive in the acreage knowingly misrepresented was or nor did concealed the true amount of acreage the knowledge issue the overcome Azuara was art s was knowledge to or at the time of sale necessary to establish Mr Eakin waiver in the is as prior was lacking erroneously entered and a new act in Mr trial is s evidence prima facie s on and to case As the element of Mr of cash sale Eakin Competent evidence the default required under the judgment terms of LSA C CP 1972 1 CONCLUSION Accordingly the default judgment entered in this aside The assessed matter to the is remanded for further proceedings plaintiff appellee Clifton D opinion in compliance with Uniform Rules Eakin matter All is vacated and costs Nothing bad faith on in this opinion Mr Azuara s should be construed part The only appeal are We issue this memorandum Courts of Appeal Rule 2 16 1 B DEFAULT JUDGMENT VACATED AND SET ASIDE 2 of this set as a issue before finding us or even a REMANDED suggestion offraud is whether Mr Eakin established or a with sufficient and competent evidence Furthermore as a general rule in the prima facie an act of sale absence of fraud or concealment when specifies that property is sold according to case boundaries for the sale is for all of the property within the described boundaries measure mentioned More or less acreage measurements contained in a property description must yield to the designated boundaries See LSA C C art 2495 Fitzgerald v Hyland 199 La 381 395 6 So 2d 321 325 1942 This however is an whether it be a set price more or less than any issue to be resolved in the trial court 5
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