author: PAINTER, Judge.

text:
    Guadalupe Trevino CAMACHO v. Susan Fontenot CAMACHO.
    No. 06-330.
    Court of Appeal of Louisiana, Third Circuit.
    Sept. 27, 2006.

      Lucretia Pecantte-Burton, New Iberia, LA, for Plaintiff-Appellant, Guadalupe Trevino Camacho.
    Elizabeth Dugal, New Iberia, LA, for Defendant-Appellee, Susan Fontenot Camacho.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, JIMMIE C. PETERS, and J. DAVID PAINTER, Judges.
   PAINTER, Judge.

|,This is an appeal by the father, Guadalupe Camacho, from the trial court’s child support order. He asserts that the trial court used an inappropriate gross income figure for the child’s mother, Susan, and that the social security benefit paid to the child should have been credited against his child support obligation.

The trial court in its reasons for judgment outlined the underlying facts of this case as follows:

These parties were married in February 1990. They were subsequently divorced in December of 1991. In June of 1997, the parties had a physical relationship resulting in the birth of one (1) child, namely Kateri Clare Camacho, born March 16, 1998. On July 21, 1998, the parties entered into a Joint Stipulation and Joint Custody Implementation Plan. Subsequently, on May 13, 1999, Susan Camacho filed a Petition for Protective Order in Docket No. 91158 against Guadalupe Camacho. The petition was filed on behalf of Susan Camacho and the minor child, Kateri. Guadalupe Camacho also filed a Petition for Injunction on May 13, 1999, in Docket No.91159. Each party was issued a restraining order. At a hearing on May 19, 1999, the court granted both parties protective orders. In addition, the parties were granted joint custody of the minor child.
Subsequently, Susan Camacho filed a Rule for change of Custody in July of 2000. Judgment on those rules was signed by the court on September 13, 2001. The court adopted a Joint Custody Implementation Plan, granting the parties joint custody of the child on an alternating weekly basis. The Court ordered in that judgment that neither party owed the other child support. Susan Camacho was ordered to maintain the child’s health and hospitalization insurance. The parties were ordered to each pay on half of uncovered medical expenses as well as on half of all educational expenses.

In May 2005, Susan filed a motion for contempt of court, to change drop off points for the transfer of the child, and for child support. The court ordered a hearing officer conference. Guadalupe filed a rule for contempt against Susan in May 2005 and, after the conference, objected to the hearing officer’s recommendations.

LThe trial court heard the various rules and the objection to the hearing officer’s recommendation and rendered judgment and gave written reasons. At trial, it was established that Guadalupe is disabled and receives Social Security disability benefits. Additionally, he is paid a benefit on behalf of the child. The testimony and evidence further established that Susan is employed as a teacher by the Iberia Parish School Board.

On appeal, Guadalupe asserts that the court erred in determining Susan’s gross income and in treating as the child’s income the social security benefit paid to the child as a result of Guadalupe’s disability.

SOCIAL SECURITY

The trial court found that the income from the disability payments should be treated as the income of the child as set out in La.R.S. 9:315.7 which, at the time of the hearing, stated that:

A. Income of the child that can be used to reduce the basic needs of the child may be considered as a deduction from the basic child support obligation.
B. The provisions of this Section shall not apply to income earned by a child while a full-time student, regardless of whether such income was earned during a summer or holiday break.
C. The provisions of this Section shall not apply to benefits received by a child from public assistance programs, including but not limited to Family Independence Temporary Assistance Programs (FITAP), food stamps, or any means-tested program.

Guadalupe argues that the social security payments made to the child as a result of his disability should be applied to reduce only his child support obligation.

LThe trial court has great discretion in decisions concerning modifications of child support decrees, and such decisions will not be disturbed on appeal absent clear abuse of discretion. Stelly v. Stelly, 02-113 (La.App. 3 Cir. 6/26/02); 820 So.2d 1270.

Rougeau v. Rougeau, 02-484, p. 2 (La.App. 3 Cir. 10/30/02), 829 So.2d 1125, 1126.

In making its determination that the benefits should be treated as the child’s income under La.R.S. 9:315.7(A), which reduces the “basic” child support obligation, the trial court, in this case, stated that “this Court chooses to use those benefits in its computation feeling that it is the most just way for computing the child support obligation.”

Guadalupe cites this court’s decision in Pousson v. Pousson, 03-111 (La.App. 3 Cir. 12/17/03), 861 So.2d 920, as support for his argument that the child’s social security benefits should be credited only against his separate child support obligation. However, this court’s decision in Pousson does not support that conclusion. In Pousson, the parties were divorced parents of two children. Each parent had custody of one child. Each child received monthly social security benefits as a result of their mother’s disability. The trial court offset the benefit received by the child domiciled with the father against the mother’s child support obligation, but did not offset the benefit received by the other child against the father’s support obligation. The father argued that the provisions of La.R.S. 9:315.1 mandated the deduction of both children’s income from the basic child support obligation. This court affirmed the trial court’s determination as to the inclusion of the children’s disability benefits stating that:

In keeping with the clear legislative intent that courts have great discretion in determining child support matters, we agree with the trial court’s determination that it is ultimately at the discretion of the trial court to determine whether or not to include disability payments [¿received by a child as income of the child in determining a parent’s child support obligation.

Pousson, 861 So.2d at 923.

This discretion has been cited in upholding the trial court’s decision in a variety of cases concerning child support for a child receiving social security benefits as a result of a parent’s disability. See, e.g., this court’s decisions in Rougeau, 829 So.2d 1125 (wherein this court found that the trial court acted within its discretion in not crediting the benefits against the father’s child support obligation), Hall v. Hall, 617 So.2d 204 (La.App. 3 Cir.1993) (wherein this court held that the trial court properly considered only one-half of the children’s benefits as income of the children that should be deducted from the basic child support obligation), and Faul v. Faul, 548 So.2d 957 (La.App. 3 Cir.1989) (wherein this court found that the husband was entitled to offset against his past due child support the amount of the benefits the children received as a result of his disability during the period for which the arrear-ages were due).

Offset of a child’s benefits from the disabled parent’s child support obligation may be found to be equitable where the disabled parent does not have physical custody and the custodial parent receives the payment on behalf of the child. Here, physical custody of the sole child is evenly divided between the parties. Further, Guadalupe receives the benefit on behalf of the child. There is no evidence that any part of the benefit is made available to Susan for the support of the child. In light of the circumstances, we cannot say that the trial court abused its discretion in finding that the child’s benefits should be treated as income of the child.

UGROSS INCOME

Guadalupe argues that the trial court improperly used a gross income figure of $31,885.09 for Susan which did not include certain tax sheltered amounts. He asserts that her yearly gross income was $39,902.68.

The Child Support Obligation Worksheet prepared by the trial court shows a monthly gross income for Susan of $2,987.21, which comes to a yearly gross income of $35,846.52. This figure apparently comes from the check issued to Susan on December 15, 2004. Susan testified, however, that the check dated December 17, 2004, showing her gross pay for the year to that date as $39,902.68, was the last check she received that year. Her W-2 form for the year 2004 shows ‘Wages, tips, other compensation” of $31,885.09 and “Medicare wages and tips” of $35,077.29. It appears that the trial court did err in using $35,846.52 as Susan’s gross income. Guadalupe would have us accept the figure of $39,902.68 as her gross income. This amount was given as Susan’s total earnings for 2004 by Eileen Bonin, payroll clerk for the Iberia Parish School Board. Bonin further testified that the amounts shown on Susan’s W-2 were after deductions for tax sheltered items. We can find no authority for allowing such deductions from the gross income of the parents for purposes of calculating the basic child support obligation. Therefore, we find that the appropriate gross income figure for Susan is $39,902.68 per year or $3,325.22 per month.

Using this same reasoning on the calculation of Guadalupe’s gross income, we find that his gross income for 2004 was $14,251.20, which is shown on his 2004 Social Security Benefit Statement as benefits paid in 2004, rather than the net amount after Medicare premiums were deducted.

| (¡CORRECTED CHILD SUPPORT OBLIGATION

Given our findings herein, we recalculate the child support obligation of the parties, using the applicable categories from the Child Support Obligation Worksheet, La. R.S. 9:315.20, as follows:

FATHER MOTHER COMBINED
Monthly Gross Income $1,187.60 $ 3,325.22 $ 4,512.82
Combined Monthly Adjusted Gross $ 4,512.82
Percentage Share of Income 26.32% 73.68%
Basic Child Support Obligation $ 640.00
Shared Custody Basic Obligation $ 960.00
Each Party’s Theoretical Child Support Obligation $ 252.67 $ 707.33
Percentage Share of Income 50% 50%
$ 126.33 $ 353.82 Basic Child Support Obligation for Time with Other Party
Child’s Health Insurance Premium Cost $ 218.00
Minus Child’s Income $ 439.00
Total Expenses/Adjustments -$ 221.00
Each Party’s Proportionate Share of Expenses -$ 58.16 -$ 162.83
Direct Payments by either party on behalf of the child 144.60
Each Party’s Child Support Obligation $ 68.17 $ 46.39
Recommended Child Support Order $ 21.78

Therefore, Guadalupe Camacho is ordered to pay $21.78 per month in child support to Susan Camacho.

1 .CONCLUSION

Accordingly, we find that the trial court used incorrect gross income figures for both parties. We further find that it did not abuse its discretion in attributing the minor child’s social security benefit as the child’s income.

For these reasons, the judgment of the child court is affirmed and amended. Judgment is rendered ordering Guadalupe Camacho to pay $21.78 per month to Susan Fontenot Camacho as child support for the minor child, Kateri Camacho. Costs of this appeal are to be paid one-half by Guadalupe Camacho and one-half by Susan Camacho.

REVERSED IN PART; AFFIRMED IN PART; AND RENDERED.

      . This statute has been amended effective June 5, 2006 to add a provision that social security benefits received by a child are to be credited as child support to the parent upon whose earning record it is based by crediting the amount against the potential child support obligation, of that parent. See 2006 La. Acts No. 386. However, the legislation is substantive and makes no provision for retroactive application. Therefore, it is inapplicable to the case sub judice.


source: Caselaw Access Project

author: FREDERICKA HOMBERG WICKER, Judge.

license: Public Domain

text:
    Desiree Valence Connell, Wife of/and Timothy J. CONNELL v. Judy Foley Davis, Wife of/and Neil Roy DAVIS, and Billiot and Carter Exterminating Company, Inc.
    No. 06-CA-9.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 17, 2006.
    Rehearing Denied Nov. 3, 2006.

      Jack A. Ricci, Gary J. Giepert, New Orleans, Louisiana, for DefendanVAppel-lant/Century 21 Patio Realty, Inc.
    Brian L. Reboul, John B. Krentel, Me-tairie, Louisiana, for Defendant/Appellee-2nd Appellant/Judy and Neil Davis.
    Pierre V. Miller, II, New Orleans, Louisiana, for Plaintiff/Appellee-3rd Appellant/Desiree and Timothy Connell.
    Panel composed of Judges THOMAS F. DALEY, WALTER J. ROTHSCHILD, and FREDERICKA HOMBERG WICKER.
   FREDERICKA HOMBERG WICKER, Judge.

|oOn appeal is a trial court judgment in favor of real estate buyers, Desiree Valence Connell and Timothy J. Connell (Connells), in this redhibition action. The Connells filed suit for relief after the purchase of a home with extensive termite damage. This matter has been before this court previously. In an unpublished opinion, we vacated the grant of a defense motion for summary judgment and remanded the matter for a trial on the merits. After that trial, the court rendered judgment in favor of plaintiffs. That ruling is the subject of this appeal.

The Connells, plaintiffs herein, purchased a home in 1991 from Judy and Neil Davis (Davises), through Century 21 Patio Realty Incorporated (Century 21). Shortly afterward they uncovered extensive termite damage that required renovation of major parts of the home. In the original petition filed on November 16, 1992, the Connells named the sellers of the property, Judy and Neil Davis and Billiot and Carter Exterminating Company, Inc. (Bil-liot), the company hired by the real estate agent to conduct the termite inspection before the act of sale, as defendants. The petition asserted an action in redhibition and made claims of |4fraud, negligent misrepresentation and general negligence. The Davises filed a cross-claim against Billiot for indemnification. Billiot filed a cross-claim against the Davises.

On February 4, 1994, the Davises filed a third party demand against Century 21 for breach of its fiduciary obligation to disclose facts to the sellers regarding termite infestation and damage.

The Connells filed an amended petition adding Century 21, and real estate agent, Ira Massman, as defendants making allegations similar to those alleged by the Davises in the third party demand. A second amending petition was filed by the Connells on October 13, 1995, which made claims of fraud against Century 21 and Ira Massman, the listing agent. A third amending petition added Charles Carter, who conducted the inspection and issued the termite certificates, as a defendant.

The Davises, Billiot and Century 21 filed motions for summary judgment. In addition, Century 21 filed an exception of prescription. After a hearing, the trial court granted the three motions for summary judgment, and declared the exception of prescription moot. An appeal to this court resulted in the reversal of that judgment and the matter was remanded for a trial on the merits.

Exceptions of prescriptions were referred to the merits. A trial was subsequently conducted, after which the trial court rendered judgment in favor of plaintiffs. Specifically, the court rendered judgment against the Davises in the redhi-bition claim and reduced the sale price by $20,500.00. The court further awarded $20,000.00 in general damages on the negligence and fraud claims, holding the Davises, Century 21 and Billiot liable in solido. The judgment also awarded indemnification from both Century 21 and Billiot to the Davises, and | ..¡dismissed with prejudice the cross-claim brought by Billi-ot against the Davises, and the plaintiffs’ claim against Charles Carter. All exceptions of prescription were denied.

The plaintiffs filed a motion to amend the judgment on two issues. The first request was to correct the spelling of the Davises last name in part of the judgment. The second argument presented to the trial court was the request for special damage awards. Plaintiffs asserted they were entitled to recover the finance charges paid as an incident to the sale, storage fees for appliances in the amount of $1,589.00, lost wages of $3,113.60, loss of annual sick leave and vacation time in the amounts of $7,248.85 and $6,918.00 respectively, and loss of use and enjoyment of the house during the time of the repairs, amounting to $8,250.00.

The defendants filed a motion for new trial seeking a reversal on the findings of liability and damages. The trial court granted the motion to amend to correct the typographical error, and denied the motions for new trial.

Defendants, Judy and Neil Davis and Century 21 have appealed to this court, seeking reversal of the judgments of liability and damages. Plaintiffs, Desiree and Timothy Connell have also filed an appeal seeking additional damages, a judgment of liability against Charles Carter, and a judgment of liability in solido against all defendants for all damages except attorney fees.

FACTS

The record contains a “Joint Stipulation of Facts” with supporting documents. The facts gleaned from the stipulations and documents show that Neil and Judy Davis inherited a home at 413 Transcontinental Drive in Metairie and listed the property for sale with Century 21. The Davises completed the property 1 (¡disclosure form in which they answered “no” to the question concerning any termite infestation, and did not mention replacement of ceiling joists. Joe Sherwood, a Century 21 agent, showed the home to Timothy and Desiree Connell. Mr. Connell observed that the house was recently painted and appeared to be in excellent condition. The Connells made a written offer on the house of $47,500.00 that was accepted by the Davises the next day.

In connection with the sale, Century 21 wrote a letter to the Connells reminding them to arrange for a general inspection on the house. The Davises were required to furnish a termite certificate in accordance with the purchase agreement because it was a requirement of the loan. Century 21 contacted Billiot to conduct the inspection. Charles Carter made the inspection in which he found live termites and evidence of past damage under the porch. That original certificate was not furnished to either the Connells or the Davises prior to the act of sale. A note attached to that certificate, dated June 25, 1993 and signed by the president of Century 21, states:

To whom it may concern:
This is to advise that Mrs. Judy Davis has never seen the attached until this date.
These papers were in our files. It is believed that the certificate was filled out incorrectly and Mr. Carter made conflicting statements. Since he prepared a new certificate checking off a different box, it is assumed that the error had been corrected and that these papers are of no value. I will verify our assumptions with Mr. Carter.

Billiot was engaged by Century 21 to treat the property and issued a second certificate showing evidence of past infestation under the porch, but no damage. The Connells were notified that the inspection uncovered visible evidence of past infestation under the porch and that the property would be treated for termites. After getting this information, Mr. Connell personally inspected both porches 17before the closing. He discovered that the area under the front porch was not accessible from the outside and that the porch was made of concrete. Mr. Connell saw no evidence of termites under the rear porch. After this inspection he was no longer concerned about termites, and relied on the inspection and the certification made as a result of that inspection. Mr. Connell searched for defects in the house in the final walk-through, but found nothing except a plumbing leak. Mr. Connell had first hand experience with termite damage in his parent’s home while he was living there. At the act of sale on November 15, 1991, Mr. Connell received a copy of the Wood Destroying Insect Report indicating there was no evidence of active termites and indicating that the signs of past infestation were under the porch.

Soon afterward Mr. Connell was painting interior walls. While scraping texture off, he found termite tunnels in the sheet rock that had been painted over. During the next few weeks he removed wall and floor coverings and found termite damage in other parts of the house. On January 13, 1992 the Connells applied for a building permit in which they sought to do extensive repairs and close in the garage to add a room to the home. They notified the Davises of the discovery of the termite damage by letter dated January 15, 1992.

John Henry, an employee of Building Services, Inc., inspected the property on two occasions and made a report. Mr. Connell made a videotape of the property on March 3, 1992. On March 26, 1992, Paul Holmes with Allstate Builders inspected the property and submitted a bid of $19,810.00. A second bid in the amount of $28,080.00 was submitted by All American Home Improvements.

At trial Timothy Connell testified that he and his wife were looking for a home to purchase because they wanted to move out of the apartment in which they were living. They saw a house at 413 Transcontinental Drive in Metairie with a|sCentury 21 sign indicating the home was for sale. The couple called Century 21 and was met by Joe Sherwood, an agent representing the company, who took them inside the house. The approximately 860 square feet home was renovated and freshly painted, and seemed to be in excellent condition. Because it was just what they were looking for, the Connells put in an offer which was accepted by the sellers, Judy and Neil Davis, the next day.

Mr. Connell testified that he read the property disclosure before making the offer on the house. He went over the items and nothing was checked off to indicate there was a defect in the house. He received a letter from Century 21 informing him of a ten day window for inspection of the property. Mr. Connell inspected the house and found it to be in “immaculate condition.” He stated that he knew there would be a termite inspection because the FHA loan for which he applied required a termite certificate. Mr. Connell stated that he received a call from Joe Sherwood to arrange the final inspection. At that time Mr. Sherwood told Mr. Connell that the termite inspection showed a previous infestation under the porch. Mr. Connell looked under the back porch, but saw no signs of termite damage. The front porch was concrete and the underside was inaccessible. Mr. Sherwood said nothing about an active termite infestation and assured Mr. Connell that there was nothing to worry about. Mr. Connell relied on the inspection, Mr. Sherwood’s knowledge, and the certificate supplied by Century 21 at the act of sale.

After the act of sale, the Connells decided to paint the bedroom before moving in. They began to scrape the texture off the wall in preparation for the painting and found termite tunnels in the sheetrock. Mr. Connell investigated further and found termite tunnels in the wood lathing behind the sheetrock and on the studs in the closet. On further inspection, termite damage was discovered in an |3enclosed attic when Mr. Connell broke through the ceiling sheetrock. Mr. Connell found that joists in the attic over the bedroom had been added, nailed directly to the old termite damaged joists, a fact that was not disclosed in the property disclosure provided by the Davises.

It was about this time that Mrs. Connell found out that she was expecting the couple’s first child. Because they could not afford to continue paying rent on the apartment and the new house note, the Connells were forced to put their belongings in storage and move in with Mr. Connell’s parents. Mrs. Connell was very upset over this uncertainty and cried often.

Mr. Connell explained that he has type 1 diabetes and is insulin dependent. He was diagnosed with severe diabetic retinopa-thy, a disease that occurs from the blood vessel damage due to diabetes and is at risk of losing his eyesight. During the month after the discovery of the termite damage, Mr. Connell suffered from severe gastrointestinal stress, which required a stomach endoscopy. Mr. Connell described Christmas that year as a “mess.” Mrs. Connell was sleeping at her mother’s home and was very distressed. Mr. Con-nell was staying with his parents temporarily and spending evenings at the new home removing drywall, carpets and padding to find the extent of the damage.

Still confident that he could move his family into their new home before the birth of the baby, Mr. Connell attempted to put a new floor in the kitchen. Removal of the floor and cabinets revealed that area of the house also had extensive termite damage.

Mr. Connell called a building inspection service shortly afterward, and on January 15, 1992 Mr. Connell wrote a letter to the Davises to advise them of the termite damage.

|inRealizing that the Davises were not going to help, Mr. Connell called Billiot and told them of the termite damage. Bil-liot came out to re-treat the property. There were some negotiations between Mr. Connell and Mr. Carter regarding repair of the damage; however, the negotiations did not lead to a resolution. Estimates to repair the damage were about $22,000.00. Since the Connells had used all of their available cash to purchase the home, they made application for a Title 1 loan and used some of Mrs. Connell’s retirement savings to complete the repairs.

Because of the extent of the necessary repairs, the Connells also decided to close in the garage to make a new living area during the construction. Mr. Connell took the next two years repairing the damage and constructing the addition. During that time the baby arrived and the family went back and forth between the parents’ homes. The pressure of trying to work, repair the house and maintain his health was extremely difficult for Mr. Connell. Mrs. Connell also suffered severe emotional upheaval trying to care for her new baby while living with her parents and her in-laws.

Mr. Connell wrote to the State for help and took a video of the extent of the damage throughout the house, which is contained in the record.

Jack Readeau, the real estate appraiser for the Connell’s lender, explained that he is not licensed to do mechanic, electrical or termite inspections. He makes a simple, cursory inspection of the property to see if there are any visible signs of defects.. He found no evidence of termites in that inspection, and appraised the house for $48,000.00. Mr. Readeau did a second appraisal in October of 1995 for the Connells based on the damage reported in the bids and the cost to repair that damage. That value was $27,000.00.

In John Schielder, a termite exterminating inspector, testified that he was contacted in November of 1991 by Lee Massman, an agent for Century 21, to do an inspection on the Davises’ house. Mr. Schielder went under the house and saw “a lot” of termite damage in the sub-floor. He decided to “walk away from trouble” and not complete the inspection. Mr. Schielder explained that he was in business for himself, had only one helper, and felt the job would be too big to handle. He went back to the Century 21 office and told Lee Massman that he could not accept the contract. Mr. Schielder could not recall if he saw active termite infestation of if he told Ms. Mass-man of the damage.

Milton Schleismann, an environmental specialist manager for the Louisiana Department of Agriculture and Forestry, testified that he enforces the standards and regulations for termite and pest control companies. His job description includes performing routine termite inspections from eradication reports to make certain inspections are done in accordance with the state minimum treating specifications. He also performs termite inspections for homeowners when there is a complaint against an exterminating company. In connection with those inspections, Mr. Schleismann makes an evaluation of the job the termite inspection company has done. His agency also reviews wood destroying insect reports used by companies for acts of sale of residential property for compliance with state regulations.

Mr. Schleismann explained that the guidelines and regulations in effect now were not in effect in 1991. At that time there was only a general regulation that a company had to inspect all of the accessible areas of the property, and identify all evidence of wood destroying insects covered by the report.

Mr. Schleismann inspected the Connells home after receiving a written request from the homeowner. He found the front porch and attic over the bedroom 11gto be inaccessible for inspection. At the time of Mr. Schleismann’s inspection, Mr. Connell was in the process of replacing the floor joists. Mr. Schleismann found evidence of termite damage in several areas under the home, predominately under the kitchen and bedroom. Additional termite damage was found in the open walls of the home.

Mr. Schleismann reviewed Mr. Carter’s report and found it did not comply with standards of the time. It should have identified all areas damaged by termites. Mr. Schleismann also found other deficiencies in the report which were “too numerous to log.” In the course of his investigation, Mr. Schleismann interviewed several people involved with the home including Steven Carter, Charles Carter’s son. Steven was the manager of the Billiot office and explained to Mr. Schleismann that Charles Carter is elderly and became “disoriented and just didn’t know what part of the house he was in.” Mr. Schleismann’s conclusion was that both the inspection and subsequent treatment were deficient.

Mrs. Davis testified they inherited the house at 413 Transcontinental from her husband’s uncle. The house sat vacant for two years before the couple decided to sell it. Before listing the property, the Davises did some renovations. Two joists beneath the kitchen floor were replaced to repair damage done by leakage from the refrigerator. Renovations included replacement of the floor and countertops in the kitchen, the toilet in the bathroom, and the hot water heater. Carpet was replaced in the bedroom and hall and the outside trim and gutters were painted. The interior of the house was also painted. Mrs. Davis stated that after they painted the bedroom, they noticed that the ceiling was bowed. Access to that part of the attic is outside, through a small window. They climbed into the attic and found items left there by Mr. Davis’ uncle, which they removed. The ceiling was removed and joists replaced. Dry wall was replaced and the whole ceiling | ^painted. The Davises also painted the trim and the gutters and replaced the garage door. Mrs. Davis testified that they replaced some rotted wood on the garage, but did not see any evidence of termites. Mrs. Davis explained that when they filled out the disclosure form to list the house, they asserted the house had no termite damage because they never lived in the house and they did not see any when they did the renovations. Mrs. Davis stated that she answered every thing truthfully on the disclosure; however, she did not give a reason for not including the replacement of the bedroom ceiling joists on the disclosure form.

After the house was listed, Ira Massman called to say that a termite inspector went to the house and did not find termite infestation and quoted a price of $850.00 to treat it. Mr. Massman called back later to say the inspector did not want the job because he did not like working on older houses. Mrs. Davis did not know the name of that inspector.

After the Connells notified the Davises of the damage, Mrs. Davis went to Century 21 to try to get that original report because she thought it would help her to show that there were no termites. She found no report from Mr. Schielder. She did, however, find the initial report from Mr. Carter that showed an active termite infestation. When confronted with the report, Ms. Trinchard told Mrs. Davis there was a mistake and that Mr. Carter simply sent the wrong report. Ms. Trinchard offered to “file 13 it”, a statement Mrs. Davis understood to mean that Ms. Trinch-ard wanted to throw the report in the trash. Mrs. Davis insisted the report be kept and that Ms. Trinchard put in writing that this report was not disclosed to the Davises. Mrs. Trinchard tried to call Mr. Carter at that time, but was unable to reach him. When contact was made with Mr. Carter, he said he went to do the inspection with Ira Massman. He found an active infestation, but was told to treat the house and issue a second termite certificate showing no active infestation. Mr. | uCarter stated that an older gentleman, he thought might be Mr. Connell’s father, was present at the time of the inspection. Mrs. Davis testified that she was never told about the report finding active termites. She relied on the report brought to the act of sale which showed no infestation. Mrs. Davis surmised that Ira Massman took the original report home and did not put it in the file. She admitted receiving the letter from Mr. Connell, but she considered it to be a “ruse” to try to get the $10,000.00 the Connells needed for renovations.

Melba Trinchard, the owner of Century 21, testified that the first termite report from Billiot showing the active infestation was found after the closing in the listing agent’s file after his death. Ms. Trinchard stated that Mrs. Davis came to her office to review the file on the sale of her property after receiving Mr. Connell’s letter regarding the termite damage. It was at that time that the report was discovered. Ms. Trinchard explained that Ira Massman had died around the time of the act of sale on the Davises’ property and his wife, Lee Massman, found the certificate in his file at home. Ms. Trinchard denied offering to dispose of the report.

Lee Massman, one of the listing agents testified that she did not see any signs of termite infestation when she inspected the house. She also could not recall reading the first report showing an active infestation that was later found in her husband’s file. She stated that she called Mr. Carter to do the inspection, but she did not attend the closing because she was ill. Mrs. Massman testified that her husband handled that part of the transaction. Mrs. Massman stated that she could not recall meeting Mr. Schielder; however, she indicated that her husband may have done so.

|1BPesiree Connell testified at trial. Her testimony corroborates that of her husband regarding the time line of the purchase of the home and the initial projects the couple had planned for the home, such at painting the bedroom.

Ramsey Skipper, one of the contractors who submitted a bid on repairing the home testified that it would have taken about four and one-half to five months to complete the work.

LAW

As previously stated, three of the parties to this action have filed appeals. The Davises have assigned six errors, Century 21 has assigned four and the Connells have assigned five errors. Billiot has not filed an appeal. For purposes of clarity we will address the various assignments as they relate to legal issues.

Redhibition

The Davises assert the trial court erred in finding them liable in redhibition to the Connells. The Davises argue that the termite damage was not a redhibitory defect because it was one that should have been discovered by a reasonably prudent buyer as provided in La. C.C. art. 2521.

We do not quarrel with the Davises’ statement of the law. The seller warrants the buyer against redhibitory defects in the thing sold. La. C.C. art. 2525 A home has a redhibitory defect when it was so inconvenient or imperfect that, judged by the reasonable person standard, had the buyer known of the defect, they would never have purchased the home. Encalade v. Coast Quality Const. Corp., 00-926 (La.App. 5 Cir. 10/31/00), 772 So.2d 244, 247, unit denied 00-3229 (La.1/26/01), 782 So.2d 634.

However, La. C.C. art. 2521 provides that the seller owes no warranty for defects that should have been discovered by a reasonably prudent buyer. The obligation on the seller is to warrant the home against hidden defects which cannot |1fibe discovered by a simple inspection. Destefano v. Crump, 96-951 (La.App. 5 Cir. 4/9/97), 694 So.2d 424.

The issues to be determined in the matter before us are whether the termite damage is a redhibitory vice; and if so, was the defect apparent or was it a hidden defect. There is no real argument about whether the termite damage was sufficient to constitute a redhibitory defect. Rather, the Davises focus their argument on the whether the defect was apparent.

Recently in Lemaire v. Breaux, 00-1826 (La.App. 5 Cir. 4/11/01), 788 So.2d 498 at 499, this court explained:

Apparent defects are those that the buyer might have observed by simple inspection; hidden or non-apparent defects are those that a buyer could not have discovered by simple inspection. Simple inspection involves more than mere casual observation. Rather, it requires the buyer who observes defects to conduct further investigation as would be conducted by a reasonably prudent buyer acting under similar circumstances. Whether an inspection is reasonable depends upon the facts of the case.
A trial court’s determination that a defect is hidden is subject to the manifest error standard on appellate review, (citations omitted)

In support of their position, the Davises refer this court to Amend v. Macabe, 95-0316 (La.12/1/95), 664 So.2d 1183. Amend, is clearly distinguishable. In Amend the buyers refused to purchase the home after a termite inspection showed an active infestation. The sellers filed an action based in contract pursuant to the purchase agreement which contained a clause meant to avoid an action in redhibition. The clause stated that in the event any termite damage was discovered, the buyer had to provide the seller with an opportunity to repair the damage. The buyers refused to purchase the home because they were concerned the home may have hidden damage. The defendant/buyers argued | ^unsuccessfully that the seller breached the purchase agreement by failing to evaluate whether the home had been structurally damaged by the termites. Based on the terms of the purchase agreement, the court found that the sellers did not have a contractual obligation to inspect the home for structural termite damage, and that the buyers must forfeit the deposit for breach of contract.

In the matter before us, there is no such contractual issue. The question of whether the termite damage was hidden damage is a question to be decided on the facts presented. The trial court gave extensive reasons for judgment. The findings of fact upon which the judgment that the termite damage was a hidden redhibi-tory defect was based are a correct summation of the facts presented at trial. The trial court clearly rejected the Davises’ argument that the evidence is insufficient to show that they had knowledge of some termite damage to the house. It is clear from the reasons that the trial court found the disclosure form filled out by the Davises persuasive. That form indicates the property never had termites, and that the Davises knew of no other problems or defects in the property. The form also fails to disclose the replacement of the ceiling joists above the bedroom ceiling which were nailed to termite damaged joists. This area was found to have extensive termite damage.

We find it significant that the termite report given to the Connells shows that past termite damage was “under the porch.” Mr. Connell testified that he looked under the one porch that was accessible and found no sign of damage. The other porch is concrete and inaccessible. There is also testimony to show that the portion of the attic in which the termite damaged joists were replaced was inaccessible except by placing a ladder against the side of the house and climbing through a window.

| LsGiven the evidence offered at trial and the joint stipulation of facts, we cannot find error in the trial court’s finding that the Davises are liable in redhibition to the Connells for hidden termite damage sufficient to be a redhibitory defect. This assignment is without merit.

The Connells argue that Century 21 and Billiot should also be held liable in solido with the Davises for redhibition damages with the exception of attorney’s fees. We disagree. The law is clear that La. C.C. Articles 2520-2540 provide that the action in redhibition may be brought only by a buyer against a seller of property. Franks v. Royal Oldsmobile Co., Inc., 605 So.2d 633 (La.App. 5 Cir.1992). That is consistent with the understanding that redhibition is not so much directed toward who is at fault in causing the vice to exist but is directed toward warranty of vendor against vices in thing sold. Cox v. Moore, 367 So.2d 424, (La.App. 2 Cir.1979), writ denied, 369 So.2d 1364 (La.1979). The redhibition claim is between sellers and purchasers. A redhibition action cannot be maintained absent such relationship. Sanders v. Earnest, 34,656 (La.App. 2 Cir. 7/24/01), 793 So.2d 393.

A purchaser’s remedy against a realtor is in damages for fraud, under La. C.C. art. 1953, et seq., or for negligent misrepresentation under La. C.C. art. 2315. Smith v. Remodeling Service, Inc., 94-589 (La.App. 5 Cir. 12/14/94), 648 So.2d 995.

Therefore, we find no merit in the Con-nells assertion that Century 21 and Billiot should be held liable in solido with the venders in redhibition.

Negligence and fraud

On the issues of fraud and negligence, the trial court ruled that the Davises, Century 21 and Billiot were liable in solido. Both the Davises and Century 21 contend that the trial court erred in that finding. The Davises’ argument relates to |19the fraud issue. The Davises argue that the trial court made its determination based solely on the testimony of the contractor, which is insufficient evidence to support the finding that they defrauded the Connells.

In the written reasons for judgment, the trial court made the following findings of fact:

(t)he Davises, Century 21 and Billiot all engaged in a series of acts directed to conceal past termite damage and infestation from the Connells. Several witnesses testified that upon a visual inspection, the Property appeared to be in good condition at the time of the sale. However, the evidence indicates that the Davises knew that extensive termite damage existed in certain portions of the home. Though they failed to include it in their list of repairs on the disclosure statement, the Davises admit that they replaced ceiling joists. These joists were nailed directly into other termite damaged beams. The Connells’ construction expert, Ramsey Skipper, testified that the Davises could not have missed the extensive termite damage, particularly when they were nailing new joists directly into the damaged beams.

La. C.C. art. 1953 defines fraud:

Fraud is a misrepresentation or a suppression of the truth made with the intention either to obtain an unjust advantage for one party or to cause a loss or inconvenience to the other. Fraud may also result from silence or inaction.

Given the above definition of fraud and the finding of fact by the trial court, which is supported by evidence in the record, we find no error in the judgment in favor of the Connells and against the Davises for fraud.

Century 21’s argument concerning its liability is twofold. First it asserts it should not have been held liable to the Connells for the termite damage. Second, it asserts it should not be cast in judgment for indemnification to the Davises. The basis for both arguments is that it was the Davises who knew of the termite damage and did not disclose it to the Connells. Thus, counsel for Century 21 reasons, there is no evidence that Century 21 committed any act upon which liability can be based. He argues further that since it is the primary defendants (the Davises) who are a fault, there can be no indemnification.

12nIn order for a purchaser to recover damages against a real estate agent representing a seller, the purchaser must establish either fraud or negligent misrepresentation on the part of the agent. Louisiana Real Estate Com’n v. Tessier, 99-279, 99-280 (La.App. 5 Cir. 7/27/99), 751 So.2d 265.

An action for misrepresentation arises ex delicto, rather than from contract. In order for a plaintiff to recover for negligent misrepresentation, there must be a legal duty on the part of the defendant to supply the correct information, a breach of that duty, and damage to the plaintiff caused by the breach. Merlin v. Fuselier Const., Inc., 00-1862 (La.App. 5 Cir. 5/30/01), 789 So.2d 710. A real estate agent has a duty to relay accurate information about the property he is selling. Mintz & Mintz Realty Co., Inc. v. Sturm, 419 So.2d 981 (La.App. 4 Cir.1982); writ den. 423 So.2d 1163-1164 (La.1982). This duty extends to both vendor and purchaser and the broker may be held liable if the duty is breached. Guidry v. Barras, 368 So.2d 1129 (La.App. 3 Cir.1979).

In making the finding that Century 21 was liable both to the purchaser and the seller, the trial judge considered the testimony of John Schielder that Ms. Massman called him to inspect the property, but he found it so termite-ridden that he refused to continue further with the job. Although Ms. Massman denies engaging Mr. Schielder for the inspection, she indicated that her husband, who was also an agent for Century 21, did. Either way, there is sufficient evidence in the record to support the trial judge’s finding that Mr. Schielder was contracted by Century 21 and refused to treat the property because of the extensive termite damage. Further, testimony from the Davises shows that Mr. Schielder’s findings were not conveyed to either the sellers or the purchasers.

When Billiot was subsequently contracted to do the inspection, the first report made showed active termite infestation. The second report does not. There hi is sufficient evidence in the record to support the trial judge’s finding that Century 21 never disclosed the report showing an active termite infestation to either the purchasers or the sellers prior to the act of sale. Given that evidence, we find no error in the ruling that Century 21 breached its duty to both the purchasers and the sellers. Further, although the Davises knew of the prior termite damage in the attic, there is no evidence to show that they knew that there was an active termite infestation in the house at the time it was inspected by Century 21’s contractor. The failure of Century 21 to disclose that knowledge is sufficient to support the trial court’s finding that Century 21 is liable for indemnification to the Davises.

The Connells assert the trial judge erred in failing to impose liability on Charles Carter for the two termite reports he submitted for Billiot. While the trial judge imposed liability on Billiot, he did not impose liability on Mr. Carter personally. The Connells urge this court to reverse that ruling and hold Charles Carter personally liable in solido with the other defendants. The contract with Billiot was with Century 21 and the sellers. Billiot did not appeal the judgment against it and therefore we did not examine the liability of Billiot to the purchasers. The Connells do not assert any legal theory upon which to base a judgment of liability on Charles Carter personally, they merely state he should be liable. We are not persuaded that the failure by the trial court to impose liability on Charles Carter personally is error.

Prescription

Century 21 asserts that the trial judge erred in denying its exception of prescription. The original petition, seeking damages for hidden termite damage, was filed on November 16, 1992. Century 21 was added as a defendant in this action in February 1994 when the Davises filed a third party demand after the | ^discovery of the termite certificate showing an active termite infestation. On April 5, 1995, the Connells filed an amended petition adding Century 21 as a defendant.

Century 21 filed an exception of prescription that was deferred to the merits of the case. It is clear from the written reasons for judgment that the trial court found Century 21 to be a solidary obligor with respect to the negligence and fraud claims, and denied the exception pursuant to La. C.C. art. 3503. Further the court found that the amended claims related back to the original petition as provided for by La. C.C.P. art. 1153.

La. C.C. art. 3503 provides in pertinent part that:

When prescription is interrupted against a solidary obligor, the interruption is effective against all solidary obligors and their successors.
La. C.C.P. art. 1153 provides:
When the action or defense asserted in the amended petition or answer arises out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of filing the original pleading.

Because we find no error in the trial court’s finding of fact or determination of liability, we find no error in the conclusion that Century 21 is a solidary obligor with the Davises on the issues of negligence and fraud. Further, we believe the trial court’s reliance on La. C.C.P. art. 1153 is well founded. Accordingly, we find no error in the denial of the exception of prescription filed by Century 21.

Damages

On appeal to this court, both the Davises and Century 21 asserts that the damages awarded are excessive. The Connells argue that the damages should be increased.

[ 2?In an action for rescission because of a redhibitory defect the court may limit the remedy of the buyer to a reduction of the price. La. C.C. art. 2541. The amount of the award is the difference between the sale price and the price that a reasonable buyer would have paid if he had known of the defects. Capitol City Leasing Corp. v. Hill, 404 So.2d 935 (La.1981). One of the principal elements in formulating a reduction of the purchase price is the cost of repairs. Griffin v. Coleman Oldsmobile, Inc., 424 So.2d 1116 (La.App. 1st Cir.1982). In sales of immovable property the amount to be awarded is the amount necessary to convert an unsound structure into a sound one. Lemonier v. Coco, 237 La. 760, 112 So.2d 436 (1959); appeal after remand, 130 So.2d 414 (La.App. 4 Cir.1961)

In the matter before this court, the trial court awarded $20,500.00 in damages for redhibition. That award was derived from testimony and evidence of two contractors regarding the cost of repair of the termite damage, as well as testimony from a real estate appraiser concerning the value at the act of sale, before the termite damage was disclosed and the reduction in value once the damage was determined.

Century 21 and, by incorporation, the Davises argue the trial court should have considered the additional construction and changes made to the house that were not necessitated by the termite damage. They contend the damage award should be reduced to reflect those additional costs.

The Connells argue that the award should be increased to include finance charges actually paid.

In a successful action for a reduction of the purchase price, the amount to be awarded is the difference, at the time of the sale, between the value of the thing sold in its defective condition and its value as warranted. Lemonier v. Coco, 237 La. 760, 112 So.2d 436 (1959) However, with respect to the sale of realty, unless there has | jabeen an immediate resale, the difference is not readily and easily ascertainable. As a consequence this court has declared that in such a case the allowable diminution is ‘the amount necessary to convert the unsound structure into a sound one.’ McEachern v. Plauche Lumber & Construction Co., Inc., 220 La. 696, 57 So.2d 405, 408 (1952)) or, as otherwise expressed, ‘the cost of repairs necessary to make the thing whole.’ Wilfamco, Inc. v. Interstate Electric Co., 221 La. 142, 58 So.2d 833, 834 (1952)).

The court concluded that the award of $20,500.00 was sufficient to compensate the Connells for their claim in redhibition. The primary consideration in determining the extent of the reduction is the cost of repair. A rejection of a claim for additional expenses including unrelated repairs and mortgage payments are within the trial court’s discretion. Kent v. Cobb, 35,663 (La.App. 2 Cir. 3/8/02), 811 So.2d 1206, 1220; writ den. 02-1011 (La.6/7/02), 818 So.2d 772.

On the negligence and fraud claim, the trial court awarded general damages in the amount of $20,000.00. Century 21 does not address this award in its brief to this court. The Davises assert that the award is excessive, but do not provide this court with any arguments to support that proposition.

The Connells argue the award is “grossly inadequate.” They argue the award should be increased to $50,000.00 to properly compensate both the Connells for the mental anguish, inconvenience, aggravation and stress endured for the two and one-half years of construction.

We note that the Louisiana Supreme Court has ruled that much discretion is accorded the trier of fact in fixing damage awards. Because of this vast discretion, an appellate court should rarely disturb an award of damages. Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1260-61 (La.1993), cert. denied, 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994). The Youn court explained:

| gsThe initial inquiry is whether the award for the particular injuries and their effects under the particular circumstances on the particular injured person is a clear abuse of the “much discretion” of the trier of fact. Only after such a determination of an abuse of discretion is a resort to prior awards appropriate and then for the purpose of determining the highest or lowest point which is reasonably within that discretion.
(citations omitted)

Id., 623 So.2d at 1260.

Given that restrictive appellate review of damage awards, and the facts of the matter before us, we cannot find a clear abuse of the trial court’s discretion in the redhi-bition claim. The figure properly awarded in redhibition is a fair representation of the estimates of the cost to fix the termite damage. We cannot find the rejection of any additional claims including finance charges is an abuse of the trial court’s discretion.

Further, we find that a reasonable trier of fact could have found that an award of $20,000.00 is appropriate for general damages in the action for negligence and fraud. Accordingly, we cannot consider prior awards to make a change in either the redhibition or the general damage award.

For the foregoing reasons, we affirm the judgment before us on appeal.

AFFIRMED.

      . Connell v. Davis, et. al, 96-1032 (La.App. 5 Cir. 4/29/97)

      . The other two defendants also filed exceptions of prescription in prior pleadings.

      . The judgment incorrectly refers to the Davises as "Harris” in some clauses.

      . Mr. Connell’s deposition is contained in the record. He denies being at the termite inspection or ever meeting Mr. Carter.

      . Amend is the case originally used as support by the trial court in the grant of the defense motion for summary judgment, and its interpretation was influential in this court's decision to overturn the trial court's ruling.

      . The Davises also filed an exception of prescription which was referred to the merits and denied. However, they have not assigned that ruling as error.


author: THOMAS F. DALEY, Judge.

text:
    John C. JENNISKENS, Glenn Rau Jenniskens, and Elizabeth Connick, Scott Walker and Michelle Hebert Walker v. PARISH OF JEFFERSON.
    No. 06-CA-252.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 17, 2006.
    Rehearing Denied Nov. 3, 2006.

      J. Patrick Connick, Law Office of J. Patrick Connick, L.L.C., Metairie, Louisiana, for Plaintiffs/Appellees.
    Timothy D. Valenti, Crystal Heine, Assistant Parish Attorneys, Gretna, Louisiana, for Defendant/Appellant.
    Panel composed of Judges THOMAS F. DALEY, SUSAN M. CHEHARDY, and WALTER J. ROTHSCHILD.
   THOMAS F. DALEY, Judge.

I ¿This case concerns a Petition for Injunction filed by plaintiffs, multiple owners of three contiguous lots (3A1, 1A1, and 1B1A) at the northwest corner of Barata-ría Boulevard and Warwick Drive in Mar-rero, Louisiana. Plaintiffs sought a zoning change for the properties in question from single family residential to GO-2, general office. Two lots front Barataría, while the third lot, which fronts Warwick Drive, lies directly behind the Barataría lots. The three lots together form a roughly rectangular parcel. The rezoning request encompassed the three lots as a unit. After a lengthy application process, the Parish Planning Advisory Board recommended the rezoning, but the Parish Council denied the request.

Plaintiffs thereafter filed this suit, asserting that the Parish Council’s denial of the zoning change was arbitrary and capricious, and requested that the trial court grant an injunction and order the Parish, through its governing body, the Parish Council, to grant the zoning change. Following a hearing and the production of evidence, the trial court agreed and granted the Petition for Injunction, including detailed Reasons for Judgment. The Parish of Jefferson appeals. The Appellees | ¡¡answered the appeal. For the following reasons, we reverse the judgment of the trial court, finding that the Council’s denial of the rezoning request was not arbitrary and capricious.

On appeal, the Parish of Jefferson argues that the Council’s denial of the zoning change was not arbitrary and capricious, but was based upon consideration of the health, safety, and welfare of the neighborhood. They argue seven Assignments of Error, which are enumerated as follows:

1. Did the Jefferson Parish Council Consider the Health, Safety and Welfare and general welfare of the public while exercising its police power in denying the rezoning of the appellees’ property?
2. The trial court erred in giving undue weight to evidence of the most economically feasible use of the land;
3. The trial court failed to consider the opinions and input of the surrounding neighborhood;
4. The trial court erred in considering the 300 year old oak tree to be an issue in the rezoning of the appel-lee’s property;
5. The trial court erred in allowing Mr. Hebert’s testimony concerning the zoning map;
6. Trial court erred in allowing testimony regarding the Envision 2020 maps;
7. The trial court erred in denying the Parish’s Motion for New Trial.

The Appellees, argue, in their answer, that the trial court erred in ordering that the 300 year-old live oak be preserved, and seek clarification on this issue.

STANDARD OF REVIEW

The petitioner bears the heavy burden of proving that the action taken by the Parish Council in denying a request in zoning change was arbitrary and capricious. The question is, was the action taken by the Council reasonable under the circumstances; that is, was the action taken by the Parish Council without reason. Jemison v. City of Kenner, 277 So.2d 728 (La.App. 4 Cir.1973).

14As this Court recently stated in Monte v. Parish of Jefferson ex rel. Coulon, 04-1059 (La.App. 5 Cir. 2/15/05), 898 So.2d 506:

The presumption of validity attached to zoning ordinances is a well established principle of law in Louisiana. It applies to all zoning ordinances, including piecemeal and spot zonings. Palermo Land Co., Inc. v. Planning Commission of Calcasieu Parish, 561 So.2d 482 (La.1990). In Palermo, the Supreme Court explained:
A challenge to a zoning decision in Louisiana is a de novo proceeding in which the issue is whether the result of the legislation is arbitrary and capricious, and therefore a taking of property without due process of law. Whether an ordinance bears the requisite relationship to the health, safety and welfare of the public is a factual question which must be determined from the evidence in the record. If it appears appropriate and well founded concerns for the public could have been the motivation for the zoning ordinance, it will be upheld.
Id. 561 So.2d at 492

The Supreme Court explained in Four States Realty Co., Inc. v. City of Baton Rouge, 309 So.2d 659, 672, (La.1974):

The authority to enact zoning regulations flows from the police power of the various governmental bodies; zoning is a legislative function. State ex rel. Civello v. City of New Orleans, 154 La. 271, 97 So. 440 (1923); State ex rel. Dema Realty Co. v. McDonald, 168 La. 172, 121 So. 613 (1921)[1929]; Meyers v. City of Baton Rouge, 185 So.2d 278 (La.App. 1st Cir.1966); Smith v. City of Baton Rouge, 233 So.2d 569 (La.App. 1st Cir.1970). Courts will not and cannot substitute their wisdom for that of a legislative body or other zoning authority except when there is an abuse of discretion or an excessive use of power. However, the exercise of a police power in zoning cannot be made without substantial relation to the health, safety and general welfare of the public. City of Shreveport v. Conrad, 212 La. 737, 33 So.2d 503 (1947); City of Shreveport v. Bayse, 166 La. 689, 117 So. 775 (1928). All ordinances are presumed valid; whoever attacks the constitutionality of an ordinance bears the burden of proving his allegation. City of New Orleans v. Beck, 139 La. 595, 71 So. 883 (1916); Ward v. Leche, 189 La. 113, 179 So. 52 (1938). However, rezoning on a piecemeal or spot basis is highly suspect. Generally, property owners may rely upon the previous exercise of police power in zoning, expecting that changes in zoning will only be made so as to affect vested property interests when the change is required to assure the public welfare. A city purporting to act under its police powers cannot create in a large area of property zoned in one classification an island of one parcel of land relegated to another zoning classification lüWhen no rational reason exists for such a separate classification. 51 A.L.R.2d 311, Reynolds v. Barrett (1938), 12 Cal.2d 244, 83 P.2d 29.

A challenge to a zoning decision in Louisiana is not an appeal from a decision of a lower tribunal wherein the reviewing court scrutinizes the record below to test the accuracy of the decision; rather, it is a de novo proceeding that tests whether the result of the legislation is arbitrary and therefore a taking of property without due process of law. Hernandez v. City of Lafayette, 399 So.2d 1179 (La.App. 3 Cir.1981).

On appellate review, the court’s inquiry is limited to the reasonableness of the council’s decision to deny the requested rezoning; it does not consider whether the district court manifestly erred in its findings. King v. Caddo Parish Com’n, 97-1873 (La.1998), 719 So.2d 410; Maynard Batture Venture v. Parish of Jefferson, 00-1669 (La.App. 5 Cir. 4/11/01), 786 So.2d 757, writ denied 2001-1386 (La.6/29/01), 794 So.2d 815. As the council did not have the prerogative to consider alternative proposals not presented to it, such alternative proposals are not before the reviewing court. Maynard Batture Venture, supra.

In its first Assignment of Error, the Parish of Jefferson concedes that the trial court was correct in finding that the two lots that front Barataría were shown to be no longer suitable for residential use, but argues the trial court was wrong about the lot fronting Warwick, and thus this could have been a basis for the Council’s denial of the rezoning request. We agree.

As the Parish notes in brief, the only evidence regarding the health, safety, and welfare of the Warwick property was the testimony of the owner, Mr. Scott Walker. The Parish argues that the only reason Walker felt that the property was unsuited to residential use was the fact that cars would illegally “cut through” the | ficommon driveway shared by his property and the Barataría properties in order to access Warwick drive, yet he never called the police to report this illegal activity. Walker never testified about vibrations, traffic, noise, or fumes, which other testimony showed negatively affected the Barataría properties.

The evidence further shows that Mr. Steve Villavaso, plaintiffs expert witness in urban planning, testified that the three parcels together were a “dream site” from the perspective of planning, and that the Warwick residential properties would be protected from further commercial intrusion by the stipulation that there be no curb cuts on Warwick and the proposed fence along Warwick, but that the same protections would be afforded the neighborhood if the Warwick property was excluded from the project. Evidence was also adduced, in the form of opinion testimony from Mr. Ed Durabb, the Parish’s Director of Planning, and Mr. Villavaso, that the two Barataría properties could be commercially developed without inclusion of the Warwick property, although it would necessarily be smaller in scale and possibly with less economic return to the owners. The Parish of Jefferson strongly argues that the Parish Council considered these exact points in its denial of the rezoning request.

The trial court noted that the plaintiffs participated in a detailed application process before various Parish agencies, all of whom recommended the rezoning. The court further noted that during trial, the plaintiffs’ expert, Mr. Villavaso, a Parish employee, Mr. Durabb, and an appointee to the Planning Advisory Board, Mr. Hebert, all testified that the failure of the Council to follow the recommendations in this particular case to grant the rezoning change was arbitrary and capricious; and further, the Parish presented no expert witness at trial to contradict these witnesses. Evidence was also presented, the trial court noted, that all other requests for rezoning lots facing Barataría in this vicinity, from residential 17to commercial or general office, made in a recently significant time period, had all been granted except for this one. The trial court found that Council’s denial of the rezoning has resulted in these plaintiffs being treated differently than the others whose rezoning requests have been granted, and has resulted in “reverse spot zoning.”

The trial court found that the character of this section of Barataría Boulevard had already changed from residential to commercial, and that this property is the “last domino” to fall in change that has already occurred. We agree with the court’s assessment of the evidence as it pertained to the lots facing Barataría. The evidence clearly shows that for the last twenty or so years, the Barataría corridor has steadily changed from residential to commercial uses. The Parish, in brief, has conceded that the lots that face Barataría should be rezoned GO-2, and that a denial of a rezoning request encompassing only these lots would be arbitrary and capricious, and would constitute reverse spot zoning.

However, the same conditions do not apply to the Warwick lot. There was no evidence presented that rezoning requests from residential to general office or commercial have been granted for lots that do not front Barataría. As pointed out above, there was also lack of evidence suggesting that the Warwick lot was unsuitable for residential use. These factors, combined with the opinions of nearby residents, which are discussed below in a separate Assignment of Error, show that the Council’s denial of the whole rezoning request had a basis in the health, safety, and welfare of the neighborhood, and thus, was not arbitrary and capricious. It appears that the inclusion of the Warwick lot in this rezoning request was in the nature of a compromise to allow commercial development of the Barataría lots | ¿while allowing the 300 year old live oak tree to be preserved. There was also testimony that including the Warwick lot in the development created a commercial intrusion into the residential area, albeit one that would be minimized with the required buffering landscaping, C.P.Z. overlay, fence, and no curb cut access directly to Warwick Drive. While this Court agrees that preservation of this tree is desirable, it does not follow that this consideration requires the inclusion of the Warwick lot in the rezoning. Whether to rezone the Warwick Drive lot is a discretionary act that the Parish Council is authorized to make upon considering the effect of the rezoning on the health, safety, and welfare of the Parish.

In light of the evidence concerning the Warwick lot, we find that the result of the Council’s denial of the rezoning request was not arbitrary and capricious, and that the trial court’s judgment must be reversed.

In its second Assignment of Error, the Parish argues that the trial court, in reversing the Council, improperly considered the most economically feasible use of the property. While the most economically advantageous use of the plaintiffs property would likely be a commercial use, it does not follow that refusal of the Council to rezone the land is arbitrary and capricious. Castle Investors, Inc. v. Jefferson Parish Council, 472 So.2d 152 (La.App. 5 Cir.1985). Evidence presented to the council and trial court, through the opinion testimonies of Mr. Durabb and Mr. Villa-vaso, established that inclusion of the Warwick lot would allow a more economically advantageous office development, but that the two Barataría properties alone could support a smaller, but still economically viable office development. Clearly, in light of the factors discussed in the previous Assignment of Error, the Council’s denial of the rezoning request was not arbitrary and capricious even though it did not allow the most economically advantageous use of the entire parcel (the three lots together).

|flIn its third Assignment of Error, the Parish argues that the trial court did not take into consideration the opinions of the residents on Warwick Drive. The concerns and desires of the electorate are appropriate considerations in the decision making process on zoning. Palermo Land Co., Inc. v. Planning Com’n of Calcasieu Parish, 561 So.2d 482 (La.1990). The opinion of the neighborhood associations and the other residents of the area must be given weight for determining the nature and character of the area. Lakeshore Harbor Condominium Development v. City of New Orleans, 603 So.2d 192, (La.App. 4 Cir.1992).

The trial court’s reasons for ruling clearly show that she considered the fact that residents of the Warwick subdivision presented a signed Petition against the rezoning. The trial court discounted the weight of the Petition for a number of reasons. First, the Warwick neighborhood lies behind the properties in question, and behind an open lot that is already zoned for a high density apartment complex. There was also testimony from a neighbor, Mr. Du-thu, who signed the petition that the Warwick subdivision residents were told that the land would be used for a gas station or convenience store, a fact that was untrue. He testified that he was comfortable with the use of the land as actually proposed in the rezoning ordinance. Further, the court noted that the petition presented a “blanket objection to any change.” It did not explain the change the neighbors thought would occur, and it did not explain whether the neighbors knew what the proposed changes were. As such, the trial court properly assigned little weight to the Petition.

However, at the hearing before the Council, several neighbors testified in opposition to the rezoning. The trial court did not mention this testimony in its reasons for ruling. At the council hearing where the testimony was offered, it was made clear that the rezoning request did not allow construction of a convenience | instore or gas station. The Parish notes in its brief that the opposition was very organized, to the point that the witnesses had their speeches timed. Mr. Aueoin, whose home is located right next to the Walker home' on Warwick, testified that he opposed rezoning the Walker home, but did not oppose rezoning the Barataria-fronting lots. Other witnesses who were residents of Warwick Drive testified generally that their neighborhood consisted of well-kept, neat homes that sold fast when on the market. They thought an office space would decrease their property values, worsen traffic and drainage, and bring more strangers into their subdivision, which is a “closed” loop without a cut-through to other streets. They disagreed that GO-2 space would be a better transition between their neighborhood and Barataría Boulevard than the existing residential properties, and worried that the proposed zoning would destroy the quiet character of their neighborhood by deeper commercial intrusion. Another neighbor felt that the view of the proposed fence on Warwick would be unattractive to nearby homes on Warwick.

The Council clearly considered more detailed and specific objections to the rezoning by area residents than were expressed alone in the signed Petition. The trial court erred in considering only the signed Petition as the expression of neighborhood opinion. This court acknowledges that zoning cannot be directed by “mob rule,” and that great weight must be given the opinions of the professional planners employed by the Parish, however, zoning changes adverse to adjacent property are a proper factor to consider when reviewing the result of the Council’s legislation.

Appellant next argues that preservation of the 300 year-old-oak tree on the Appellees’ property should not be an issue in the rezoning of the property. The Parish argues here that the inclusion of the Warwick parcel in the rezoning request |nwas largely a compromise to protect the oak tree, in addition to allowing a bigger development and one with lot depth to match lot 3A1. Both parties agree that there is no tree protection ordinance applicable to Marrero; no legal authority requires preservation of this tree.

This Court agrees that the desire to preserve the tree is a factor that the Parish Council could have considered in adopting or rejecting the rezoning request. The plaintiffs voluntarily agreed to protect the tree as a condition of the rezoning request. The inclusion of the Warwick lot allowed for an office development that would allow both sufficient parking and the preservation of the tree. Absent the owners’ voluntary agreement to preserve the tree, without an applicable tree protection ordinance, the Parish could not require preservation of the tree as a condition for rezoning the Barataría lots. The Parish Council decided it was not in the best interests of its citizens to accept the owners’ voluntary proposal regarding protection of the tree. If the owners request rezoning of only the Barataría lots, the Parish has no current authority to protect the tree. The Parish Council was offered a compromise, which they had the discretion to accept or reject.

The Parish argues next that the trial court erred in allowing Mr. Tommy Hebert to testify regarding a zoning map that he could not identify. The record shows that Mr. Hebert, an appointee to the Parish Planning Board who testified for plaintiffs, did in fact state that he recognized the map of the Barataría corridor. This Assignment of Error is without merit.

The Parish next argues that the trial court incorrectly allowed testimony regarding the Envision 2020 maps, which are the Parish’s future land use maps that were not effective until after the Council ruled upon the appellees’ zoning request. The Parish argues also that the court erred in relying on the 2020 maps when the same were not yet effective when the Council ruled.

hgThe trial court’s Reasons for Judgment show that the court considered the 2020 maps because they were the product of a lengthy process to determine the parish’s future land use needs. The court properly considered evidence of the corridor’s current zoning composition, and also properly considered what the parish planners have determined are the future needs of the parish. The fact that the maps were not formally adopted at the time of the Council’s ruling does not change the fact that they were evidence of the parish’s professional planners’ opinions of the parish’s future land use needs, and were entitled to weight on that basis. The trial court did not err in considering these maps.

Last, the Parish argues that the trial court erred when it denied its Motion for New Trial. In this Assignment of Error, the Parish argues that the trial court’s ruling exceeded its authority by ordering the property rezoned, citing Saltamachia v. Parish of Jefferson, 579 So.2d 1197 (La.App. 5 Cir.1991) and Monte v. The Parish of Jefferson, supra. This Assignment of Error has been mooted, however, by this Court’s reversal of the trial court’s judgment.

Appellees argue, in their answer to this appeal, that the trial court erred when it ordered them to preserve the live oak tree in its ruling. Given that we reverse the trial court, this Assignment of Error is moot. We note that that the trial court’s formal ruling, signed on April 22, 2005, makes no mention of the oak tree. Appeals are taken from adverse judgments, not from opinions of the court; the trial court’s Reasons for Judgment, while defining the principles upon which the court is deciding a case, form no part of the official judgment signed and from which appeals are taken. LSA-C.C.P. arts.1917, 1918; Vintage Contracting, L.L.C. v. Dixie Bldg. Material Co., Inc., 03-422 (La.App. 5 Cir. 9/16/03), 858 So.2d 22.

| ^Accordingly, for the reasons above, we find that the Parish Council’s denial of this rezoning request, as presented to the Council, was not arbitrary and capricious, and hence we reverse the judgment of the trial court.

REVERSED.

      . The rezoning request was presented to the Council with the three properties combined as one development. Under Maynard Batture Venture, supra, the Council would not have the authority to consider rezoning the properties separately from each other, unless that option were formally presented to the Council.

      . Generally, "spot zoning” is the singling out of a small parcel of land for use classification different from that of the surrounding area for the benefit of the owners of such property and to the detriment of others. Cook v. Metropolitan Shreveport Bd. of Appeals, 339 So.2d 1225 (La.App. 2 Cir.1976).

      . It is noted that Mr. Duthu lived on Hazel Drive, which is the street in this subdivision furthest away from Barataría Boulevard.

      . These latter comments appeared to be against the entire rezoning proposal, not merely the Warwick lot.

      . This court notes, however, that had the rezoning ordinance presented to the Council been approved, the Appellees would have been legally bound to preserve the tree, since included therein was their specific agreement to do so.