author: WALTER J. ROTHSCHILD, Judge.

text:
    Ellie R. MELANCON Wife of/and Steven G. Melancon v. TRI-DYNE TELE-PIER, LLC.
    No. ll-CA-1055.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 31, 2012.
    Rehearing Denied Aug. 6, 2012.

      Roy M. Bowes, Joshua Mathews, Joaquin Shepherd, Attorneys at Law, Gretna, LA, for Plaintiff/Appellee-2nd Appellant.
    Albert J. Nicaud, Attorney at Law, Me-tairie, LA, for Defendant/Appellant.
    Panel composed of Judges WALTER J. ROTHSCHILD, FREDERICKA HOMBERG WICKER, and MARC E. JOHNSON.
   WALTER J. ROTHSCHILD, Judge.

|2Plaintiffs, Ellie and Steven Melancon, and defendant, Tri-Dyne Tele-Pier, L.L.C. (“Tri-Dyne”), appeal the trial court’s July 29, 2011 judgment awarding $39,016.50 to plaintiffs, as well as expert fees of $3,225.00 and court costs. For the following reasons, we reverse and vacate the award of $39,016.50 and we remand to the trial court for further proceedings.

FACTS AND PROCEDURAL HISTORY

The Melancons and Tri-Dyne entered into a contract for elevation work to be performed at the Melancons’ home at 2068 Camille Court in Lafitte, Louisiana. According to the Melancons, Tri-Dyne performed defective work and did not complete the work agreed upon by the parties. On May 5, 2009, the Melancons filed this lawsuit against Tri-Dyne alleging that Tri-Dyne breached the contract between the parties and that Tri-Dyne’s defective work caused them to suffer damages. On June 30, 2009, Tri-Dyne filed an Answer and Reconventional Demand, in which it generally denied the Melancons’ allegations and sought [s$9,757.46 as the remaining amount due to Tri-Dyne under the terms of the contract. Trial of this matter was held on June 20, 2011.

At trial, Joseph Sproules testified that he is the owner of Tri-Dyne, which is a foundation contractor. Mr. Sproules testified that Tri-Dyne entered into a contract with the Melancons to elevate their home for $47,016.50. According to Mr. Sproules, Tri-Dyne purchased additional 6 by 6 sill beams for the property for $2,550.00, making the total amount of the project $49,566.50. A set of plans for the project were prepared by Edmond Pepper of the engineering firm, Pepper and Associates, Inc. In his testimony, Mr. Sproules acknowledged that some defects were present, but he contended that all of the deficiencies could be repaired and that the Melancons did not give Tri-Dyne the opportunity to repair the problems complained of.

Mr. Sproules testified that the contract between the parties was signed in the beginning of May 2007 and work began in June 2007. Shortly thereafter, the Melan-cons met with Mr. Sproules because they had an issue with the workmanship and procedures used by the subcontractor who was building the footings, Jericho Foundation. Mr. Sproules appeared at the site and instructed Jericho on how to build the forms correctly. Work on the project continued thereafter.

Mr. Sproules testified that he was at the property within six or seven months before trial and he discovered that the foundation was not constructed as per the plans drawn by Mr. Pepper, because the footings and the piers in one section were not put in. He also admitted that the plans call for six north-to-south chain walls, but only five were installed because there was “cribbing” where a beam should be. Mr. Sproules testified that he informed the Melancons that the sixth beam could not be poured and told them to let him know if there were any problems with the | ¿structure so that he could make the necessary adjustments. He asserted that the Melancons did not tell him that there was any floor deflection caused by the missing beam.

Mr. Sproules admitted that there were some other deviations from the plans and that he did not consult the engineer who prepared the plans before making the changes. However, he testified that plans have to be modified somewhat during a project. Mr. Sproules believes that TriDyne completed the project, with the exception of one grade beam that should be installed.

The Melancons made an initial payment of $30,000.00 for the project. Mr. Sproules stated that the Melancons continued to make payments of $500 per month to TriDyne for 18 months after Tri-Dyne left the job site and never made any complaints about the foundation during that time. The Melancons stopped making payments in March 2009 and Tri-Dyne contends that the remaining due under the contract is $9,757.46.

Prior to trial, Mr. Sproules and Mr. Pepper inspected the property and noted some deficiencies in the construction. TriDyne’s estimate of the cost to repair the defects is $5,059.85.

Steven Melancon testified that after Hurricane Katrina, he and his wife hired Tri-Dyne to elevate their home. In his testimony, Mr. Melancon complained that the project was never completed and that there were numerous defects in the work performed. He stated that he was told that the house would be raised one time, but he contends that it was actually raised five times. Mr. Melancon testified that he met with Mr. Sproules on June 11, 2007, shortly after work on the project began, because he was not satisfied with the work of a subcontractor, Jericho Foundation. He stated that Jericho’s workers were slow, did not always show up, and the forms they prepared were flimsy. He further testified that Jericho’s workers did not even 1¡¡have a copy of the plans for the project, so he gave them a copy. He stated that when Mr. Sproules came to the site, he had Jericho tear out the foundation work they had done.

During his testimony, Mr. Melancon identified pictures of the property and defects in the work, including a gap between the chain wall and webbing, a cracked pier, a repaired pier, and other damage. Mr. Melancon also stated that he was inside the house one time when it was raised and the sunroom was not raised with the rest of the house, causing the floor to separate and an exterior wall to pull away. According to Mr. Melancon, he informed Mr. Sproules of the problems caused by failing to raise the sunroom, but Mr. Sproules did not try to remedy the problem. He stated that he and his wife paid $4,400 to have some repairs made, such as sheetrock repair and having doors replaced.

Mr. Melancon further testified that he was initially informed by Tri-Dyne that the project would take 14 days to complete, but he contends that Tri-Dyne has never completed the project. He stated that there is floor deflection in the area where the sill was left out and that the furniture moves when anyone walks across that area of the floor. Mr. Melancon admitted that he did not notify Mr. Sproules in writing or otherwise about the floor deflection, because Mr. Sproules had ignored other issues that were brought to his attention.

Elbe Melancon testified that she was at home when the house was raised five times and when the sunroom was not raised with the rest of the house. She stated that after the initial payments to Tri-Dyne, they paid $500.00 per month because they were waiting on funds from the Road Home program. Mrs. Melancon testified that Tri-Dyne did not complete the elevation project, did not follow the plans, and took out a support beam without replacing it.

| fiPressley Campbell, a structural engineer, testified on behalf of the Melancons. He stated that he inspected the property in July of 2010, looked at the design drawings, and prepared a report of his findings. Mr. Campbell identified several substantial deviations from the plans and numerous deficiencies or defects in the work performed. He noted that there was a section in the footprint of the foundation where footing and chain wall were missing. He also identified photographs of defects in the structure. He noted that there was deflection of the floor where the chain wall was missing, many foundations where bolts were not secure or were missing, and the width of the chain wall was supposed to be 18 inches but varied from 15 to 17 inches, which could affect the integrity of the chain wall. He also noted that there was a gap where the chain wall was placed or an inability of the foundation be connected in such a fashion to adequately carry the load, which caused the structural integrity of the foundation to be at risk. As a structural engineer, he testified that it was his opinion that the chain wall should be rebuilt. He opined that it would be easier for a contractor to rebuild it rather than try to make adjustments in order to match the design.

On cross-examination, Mr. Campbell admitted that the structure is structurally sound and it appears to support the load, though it has deflection where a beam is missing and he noted that the entire structure “flexed” when he walked around it. He testified that cracks in the piers indicate that the piers are not carrying the load in some capacity or that the foundation does not have an ability to carry the load placed on it. He admitted that placing a continuous footing and bracing the structural area underneath the area with the pronounced deflection could rectify the problem.

In his report, Mr. Campbell indicated that he compared the design of the chain wall with the “as-built” footprint, and they were substantially different. ^Therefore, he opined that Tri-Dyne did not follow the design drawings prepared by the professional engineer, Mr. Pepper. He further indicated that a missing beam in the structure caused the interior floor to show the absence of support by showing signs of floor deflection. He also stated that missing flat and/or lock washers demonstrate poor workmanship and the missing foundation and/or chain wall shows that construction was not completed per the engineering design. He further opined that TriDyne should have verified that the prefabricated concrete risers complied with the design prior to installation, and he stated that the cracks in the pre-fabricated concrete risers show poor workmanship and shortcomings in quality control. Mr. Campbell recommended that the foundation be replaced and a new foundation be constructed consistent with the approved design.

Edmond Pepper, an expert in structural engineering, testified for defendant, TriDyne. He stated that he prepared the plans for the elevation project at issue. He noted that it is not unusual to change the position of a pier or footing based on what is found during a project, but he acknowledged that it is good practice to consult a design professional. He stated that Mr. Sproules asked him to return to the site in February of 2011. He admitted that there were some deficiencies in the work performed, but he did not believe that they affected the ability of the structure to function as intended. He recommended that a sill beam be placed in order to alleviate the sagging or deflection of the floor.

Mr. Pepper testified that the construction was never completed, because a grade beam needs to be added where the floor is sagging and a damaged pier needs to be replaced. He also testified that he believes the work performed was not excellent or good, but only fair. However, he opined that the property is structurally sound in its current condition, though some repairs are recommended, and he does not believe that the structure needs to be torn down or rebuilt.

|sIn his report, Mr. Pepper stated that the foundation grade beams were not constructed according to plan, noting that the exterior and interior grade beams protrude approximately 20 inches above existing grade. The plans call for exterior beams to be constructed 6 inches above existing grade and interior beams to be constructed flush to grade. Mr. Pepper concluded that if left unremedied, this would likely result in poor foundation performance. Thus, he recommended that these void spaces created between grade beams be backfilled immediately to prevent collection of water. He also recommended that a system of pressure relief weep holes be drilled at regular intervals through each interior and exterior grade beam to relieve ground water pressure that may build up in the spaces once back-filled. He indicated that the construction is acceptable, requiring only minor remedial correction. He further opined that temperature or shrinkage cracks in the prefabricated concrete risers are normal and not of concern, but damaged or cracked units should be repaired or replaced.

At the conclusion of trial, the trial court allowed the parties additional time to submit post-trial memoranda. Thereafter, the matter was taken under advisement. On July 29, 2011, the trial court rendered a judgment in favor of the Melancons and against Tri-Dyne for $39,016.50, which was the amount paid by the Melancons to TriDyne. The court also ordered Tri-Dyne to pay the plaintiffs’ expert fees of $3,225.00, plus court costs and interest. Tri-Dyne and the Melancons have appealed this judgment.

LAW AND DISCUSSION

In its first assignment of error, TriDyne contends that the trial court erred in awarding the Melancons, as damages, all amounts paid by the Melancons to TriDyne for the elevation of their home, because the proper measure of damages is the cost to repair any deficiencies or defects. It argues that both structural engineers,_y\Ir. Campbell and Mr. Pepper, indicated that the structure was “structurally sound.” It also asserts that Mr. Campbell admitted that the deflection in the floor could be rectified by replacing the missing footing and bracing the structural area underneath the area where the footing would be placed. It contends that the trial court should have considered the $5,059.85 repair estimate Tri-Dyne presented and subtracted this amount from the remaining amount due to Tri-Dyne under the contract.

The Melancons respond that the proper measure of damages under a construction contract is not always the cost of repairs to remedy the defect. Rather, they assert that courts have allowed the return of sums paid to a contractor when the construction was of no value and could not be remedied, and they believe the trial court agreed with their expert that the foundation needed to be rebuilt.

In its reasons for judgment, the trial court noted that the job was supposed to be completed in 14 days, but it was still not complete after four years and was not performed in accordance with the plans and specifications. He also noted that Tri-Dyne’s own expert admitted that the work was incomplete and not performed in accordance with the plans. Thus, the trial judge awarded the Melancons all amounts paid to Tri-Dyne, which was $39,016.50.

LSA-C.C. art. 2769 provides:

If an undertaker fails to do the work he has contracted to do, or if he does not execute it in the manner and at the time he has agreed to do it, he shall be liable in damages for the losses that may ensue from his non-compliance with his contract.

It is implicit in every construction contract that the work of the builder be performed in a good, workmanlike manner, free from defects in materials or workmanship. Cascio v. Carpet, 42,653, p. 10 (La.App. 2 Cir. 10/24/07), 968 So.2d 844, 851; Trahan v. Broussard, 399 So.2d 782, 784 (La.App. 3 Cir. 5/27/81). |inAn owner who seeks to recover damages from a contractor has the burden of proving: 1) the existence and nature of the defects; 2) that the defects were due to faulty materials and workmanship; and 3) the cost of repairing the defects. Lang v. Sproull, 45,208, p. 9 (La.App. 2 Cir. 4/28/10), 36 So.3d 407, 414; Mount Mariah Baptist Church, Inc. v. Pannell’s Associated Electric, Inc., 36,361, p. 9 (La.App. 2 Cir. 12/20/02), 835 So.2d 880, 887, unit denied, 03-0555 (La.5/2/03), 842 So.2d 1101.

The appropriate measure of damages as a result of the breach of a contract to build under LSA-C.C. art. 2769 is what it will take to place the homeowner in the position he deserved to be in when the building was completed. Martinez v. Reno, 99-114, pp. 4-5 (La.App. 5 Cir. 9/15/99), 742 So.2d 1014, 1016. Thus, the owner is entitled to the cost of repairing the defects or completing the work. Rice v. Mesa General Contractor, L.L.C., OS-115, p. 12 (La.App. 5 Cir. 5/27/08), 986 So.2d 122, 129. However, when the construction is so defective that it would be useless, the loss sustained is the price paid for the construction of the thing, plus the removal thereof, and the cost of restoring the premises to its former condition. Crescent Coating Company, Inc. v. Berghman, 480 So.2d 1013, 1019 (La.App. 5 Cir. 12/26/86); Ilgenfritz v. Radalec, Inc., 226 La. 59, 74 So.2d 903 (1954).

In the present case, the trial judge awarded the Melancons the return of all the money they had paid to TriDyne, finding that Tri-Dyne did not complete the work agreed upon in the contract, that the work performed was not in accordance with the contract specifications, and that the work performed caused damage to the Melancons and their property. However, he did not find that the construction was so defective as to render it useless, and the testimony at trial did not establish that the construction could not be repaired.

|n At trial, plaintiffs’ expert, Pressley Campbell, did not indicate that the structure was useless. Rather, Mr. Campbell stated that the structure was safe to enter and was structurally sound. He also indicated that it appears to “support the load that it’s supposed to support,” though there is deflection in the area where a beam is missing. Although Mr. Campbell testified that the foundation needed to be rebuilt, he stated that “it just would be easier” to rebuild rather than to make adjustments in order to match the design.

The record as a whole demonstrates that some of the work performed by Tri-Dyne was substandard and that there are a number of defects that need to be repaired. However, because the structure is not so defective as to render it useless, we find that the trial court erred in awarding the Melancons the return of all the money they paid to Tri-Dyne. Rather, the appropriate measure of damages that should have been awarded is the amount necessary to repair the defects. Accordingly, we reverse and vacate the judgment awarding $89,016.50 to the Melancons.

The record before us does not contain sufficient evidence to determine the amount necessary to repair the defects. Although Mr. Sproules prepared an estimate of what he believes it would cost to repair the defects, there was insufficient testimony to establish that all of the defects proven at trial could be remedied for $5,059.85.

LSA-C.C.P. art. 2164 provides that the appellate court shall render any judgment which is just, legal and proper upon the record on appeal. Ray Brandt Nissan, Inc. v. Guruich, 98-634, p. 2 (La.App. 5 Cir. 1/26/99), 726 So.2d 474, 476. The purpose of LSA-C.C.P. art. 2164 requiring appellate courts to render judgment which is just, legal, and proper upon record on appeal is to give the appellate court complete freedom to do justice on the record regardless of whether |]2a particular legal point or theory was made, argued, or decided by the court below. Safeway Ins. Co. of Louisiana v. State Farm Mut. Auto. Ins. Co., 36,853, p. 8 (La.App. 2 Cir. 3/5/03), 839 So.2d 1022,1027.

Based on the entire record before us, we find that in order to reach a just result in this matter, the case must be remanded to the trial court for the parties to present evidence of the cost necessary to repair the defects caused by the work performed by Tri-Dyne, and for the trial judge to determine the cost of repairs that should be awarded to the Melancons. See Henderson v. Diamond Datsun, Inc., 413 So.2d 542, 545 (La.App. 4 Cir. 4/7/82), in which the Fourth Circuit found that the damage estimates provided by plaintiff were inadmissible hearsay and the Court remanded for a determination of damages.

Considering our ruling to remand this matter for further evidence, we pretermit discussion of the remaining assignments of error asserted by Tri-Dyne.

The Melancons appealed the judgment and asserted that the trial court erred in only awarding plaintiffs the return of all sums paid to Tri-Dyne, because the proper measure of damages when construction defects cannot be corrected is not only the price paid but also the costs of removing the defective construction. However, considering our determination that the Melan-cons are entitled to the cost of repairing the property, not the entire price paid, this assignment of error is without merit.

| ^DECREE

For the foregoing reasons, we reverse and vacate the judgment awarding $39,016.50 to plaintiffs. We also remand to the trial court for the parties to present evidence of the cost of repairs and for the trial court to determine the proper amount of damages to be awarded to plaintiffs.

REVERSED, VACATED, AND REMANDED

      . Mr. Sproules defined ''cribbing” as "a style where they use a cross system of 6x6’s to help shore up the house during the demolition and the reconstruction of the footing and the foundation system.”


source: Caselaw Access Project

author: MARION F. EDWARDS, Chief Judge.

license: Public Domain

text:
    John A. ORR v. Clarence E. JONES, Jr., Mary Eve Jones, and GBS Properties, LLC d/b/a Prudential Gardner Realtors, Inc., Lynne Gauthreaux, Sue Haynie, and their Professional Liability Insurance Carrier, Continental Casualty Company.
    No. ll-CA-1085.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 31, 2012.
    Rehearing Denied Aug. 6, 2012.

      Gerard J. Delahoussaye, Joseph B. Landry, Attorneys at Law, New Orleans, LA, for Plaintiff/Appellant.
    G. Patrick Hand, Jr., The Hand Law Firm, APLC, Gretna, LA, for Defendants/Appellees.
    Jack A. Ricci, Ricci <& Giepert, New Orleans, LA, for Defendant/Appellee.
    Panel composed of Judges MARION F. EDWARDS, SUSAN M. CHEHARDY, and MARC E. JOHNSON.
   MARION F. EDWARDS, Chief Judge.

1 ?PIaintiff/appelIant, John Orr (“Mr. Orr”), appeals a judgment of the trial court in which it ruled in favor of the defendants/appellees, Mr. and Mrs. Clarence E. Jones Jr., Sue Haynie, Lynn Gau-threaux, and their broker, Prudential Gardner Realtors (“Prudential”), thereby dismissing Mr. Orr’s claims of redhibition, fraud, and conspiracy against the sellers and realtors for failure to disclose a cracked slab in immovable property purchased by Mr. Orr. We affirm.

The original petition in this matter was filed on August 8, 2006. Trial began before Judge Cornelius Regan on January 29, 2010, April 12, 2010, and May 27 and 28, 2010. The trial was still not completed and was re-set to continue on August 27, 2010. Another day still was needed to complete the trial that was concluded on September 8, 2010. Defense counsel moved for a mistrial that was granted on January 25, 2011, and Judge Regan re-cused himself on his own motion.

The case was randomly re-alloted. A new trial was conducted on July 11, 12, and 13, 2011. On August 2, 2011, the trial court rendered judgment, dismissing all of Mr. Orr’s actions against all defendants, after finding that Mr. Orr “did not sufficiently or adequately meet his burden in proving that Defendants defrauded and/or conspired to defraud him” and that “the Defendants were bad faith sellers.” It is this judgment that is before us on appeal.

\ ¿FACTS

After he lost everything in Hurricane Katrina, Mr. Orr was living in River Ridge with his girlfriend’s parents. Because the living arrangements were cramped and less than ideal, Mr. Orr decided to purchase a home of his own. He saw a sign on a house that he liked at 471 Gordon Avenue in Harahan and made an appointment with Lynne Gauthreaux, an agent with Prudential Gardner Realtors who had the listing, to see the home. Because Mr. Orr did not have a realtor, he signed a Disclosure and Consent to Dual Agency agreeing to be represented by the sellers’ agent, Lynn Gauthreaux.

Mr. Orr made an offer on the house that was accepted by the sellers. At the time of the purchase, Lynn Gauthreaux gave Mr. Orr a Property Disclosure Document that indicated there were no defects regarding the foundation of the home. The document was signed by the sellers (Mr. and Mrs. Clarence Jones), Mr. Orr, Lynn Gauthreaux, and Sue Haynie, who is also a realtor with Prudential.

Testimony and documentary evidence at the second trial shows that the home Mr. Orr purchased was about fifty years old. In 1991, Robert Anderson, a structural engineer, conducted an inspection of the property and found a “crack running through the center of the slab.” At that time, Mr. Anderson “did not feel that this is a major problem which is unable to be solved.” He recommended the crack be sealed by the injection of epoxy and indicated that he “would expect the slab to have more strength at the location of this discontinuity than any place else in the slab.” Mr. Anderson estimated that the crack was there since the slab was poured about fifty years ago, and stated that, upon repair, he “would not anticipate any further difficulties with the slab as being probable in consideration of its age.” Attached to the report is a sketch that shows a crack across the slab. The record also contains a contract between the owners of the home at that time and Southern 14 Coating & Waterproofing, Incorporated, dated June 5, 1991, for the repairs recommended by Mr. Anderson. Testimony of the realtor shows that a cancelled check proving the contract was completed was also included with the contract, although that document was not offered into evidence in this trial.

Mr. and Mrs. Jones purchased the home in 2003 and were made aware of the cracked slab and the repairs. At that time, the Joneses hired Mr. Chris Savoie to conduct an inspection on the home that noted the crack in the slab. However, that document is not in evidence, and Mr. Sa-voie did not testify at trial. Lynn Gau-threaux, who represented the Joneses when they purchased the home in 2003, testified that she spoke with Mr. Savoie, and he indicated that the crack was not a serious problem and just needed to be sealed at the edges of the slab to prevent termite invasion. The suggested repair was done, and the edges of the crack were sealed with an overlay of concrete. Based on this inspection and the belief that the slab was repaired, the Joneses purchased the home.

While the Joneses lived in the home, they decided to replace the flooring and, during that process, the slab was exposed. At that time, they observed that the crack in the slab was repaired as represented when they purchased the home. Accordingly, they put new padding and carpet down over the repaired slab. When the Joneses decided to put the home on the market in 2005, they did not indicate in the disclosure statement that there was a problem with the slab because they believed the problem to be fixed.

Before the act of sale, Mr. Orr hired and inspector to examine the home. The inspector found some mold behind the sink but found no problems with the slab or foundation. Mr. Orr was present during the inspection and admits that he personally inspected the perimeter of the house and saw no cracks in the slab.

|fiShortly after moving into the home, Mr. Orr began renovations to the home. When he knocked down a wall and pulled up the flooring, he discovered a crack in the slab. Photos introduced into testimony show cracks in the foundation that appear to have been repaired and cracks that are still remaining. The photos also show a crack in the foundation easily visible on the outside of the home. However, Mr. Orr testified that these outside cracks were not visible originally because a layer of cement “rub” was covering them.

Mr. Orr and his family moved into a new home in 2008 and rented the house to another family for $1,300 per month. Mr. Orr testified that his expenses were about $13,000 to $15,000 from the time of purchase to the time of trial. That amount included grass cutting, plumbing, electrical, and air-conditioning repairs. Mr. Orr presented no receipts for any of these expenses, and he could not state exact amounts paid for individual expense items. Mr. Orr testified that none of these expenses related to the cracked slab except the plumbing repair. Although Mr. Orr opined that the plumbing problems were caused by the cracked slab, he did not offer any professional opinion regarding the issue.

After the bench trial, the trial court took the matter under advisement and, ultimately, it rendered judgment in favor of the Joneses, Sue Haynie, Lynn Gau-threaux, and Prudential. It is clear from the reasons incorporated into the judgment that the trial court found that Mr. Orr “did not sufficiently or adequately meet his burden” in proving fraud, conspiracy, or that the Joneses were bad faith sellers.

LAW AND ANALYSIS

Mr. Orr stated causes of action against the Joneses in redhibition, and against Sue Haynie, Lynn Gauthreaux, and Prudential in fraud and conspiracy. Specifically, in his original petition, Mr. Orr made claims that the realtors ^committed fraud and also conspired with the Joneses to deceive him by failing to disclose a known and material defect (the cracked slab). Mr. Orr asserts that all defendants were in bad faith and that the failure to disclose the defect was calculated to mislead and misinform him.

In brief to this Court, Mr. Orr assigns nine errors for our review in which he challenges the factual findings and the legal conclusions made by the trial court in dismissing all of his causes of action against all defendants. All but one of those relate to the factual findings that the realtors did not defraud Mr. Orr and the Joneses were good faith sellers.

A realtor has a duty to relay accurate information about property, a duty which extends to both vendor and purchaser, and may be held liable if such duty is breached. That duty includes the duty to disclose to a buyer a known material defect regarding the condition of real estate of which a broker, salesperson, or timeshare interest salesperson has knowledge. A breach of that legal duty to supply correct information, resulting in damage to a plaintiff caused by a breach may allow a plaintiff to assert a cause of action for negligent misrepresentation. However, 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. To prove fraud, the party making the allegation must prove that intent to defraud exists and that the defrauding party deliberately seeks to gain an unjust advantage or to cause loss or inconvenience to the other.

Considering the facts of this case, we find no abuse of the trial court’s ruling that Mr. Orr did not prove his cause of action in either negligence or fraud against |7Sue Haynie, Lynn Gauthreaux, and Prudential. The testimony shows that the realtors believed the slab to be repaired at the time of the disclosure to Mr. Orr and had no intent to mislead or defraud him.

Documentary evidence supports the testimonial evidence offered by the defendants. The record shows that a structural report done in 1991 revealed that the home had a cracked slab that could be repaired with epoxy. There is also a contract for the repair signed by the owners of the home at that time, and testimony shows that a cancelled check was given the Joneses when they purchased the home. Further, testimony of the Joneses and Lynn Gauthreaux shows that a second inspection was done on the home in 2003 when the Joneses purchased it. At that time, the inspector recommended that the edges of the crack be sealed to prevent termite damage. That repair was done when the Joneses purchased the home.

For the same reasons, we find the trial court did not abuse its discretion in finding the Joneses were good faith sellers. There is nothing in the record, other than allegations of Mr. Orr, to show that the Joneses had any knowledge that the slab was not repaired.

In his final assignment, Mr. Orr argues, in the alternative, that, even assuming there was no fraud or bad faith, the trial court erred in not ruling on his action in redhibition pursuant to La. C.C. arts. 2520 et seq. In response, defendants argue Mr. Orr only stated causes of action in fraud and bad faith redhibition making the finding whether the cracked slab is a redhibitory defect unnecessary. We disagree.

In the original petition, Mr. Orr asserts that the Joneses are in violation of the redhibition articles. We also find that a careful reading of the judgment substantiates Mr. Orr’s claim that the trial court never decided whether the cracked slab was a redhibitory defect, or whether Mr. Orr proved his claim in redhibition. | sIt is presumed that when a judgment is silent as to a claim made by a plaintiff, it is denied. Accordingly, we will consider that issue.

Mr. Orr asserts the cracked slab is a redhibitory defect for which he should be compensated either with return or reduction of the purchase price or other damages.

La. C.C. art. 2520 defines defects that are redhibitory as follows:

A defect is redhibitory when it renders the thing useless, or its use so inconvenient that it must be presumed that a buyer would not have bought the thing had he known of the defect. The existence of such a defect gives a buyer the right to obtain rescission of the sale.
A defect is redhibitory also when, without rendering the thing totally useless, it diminishes its usefulness or its value so that it must be presumed that a buyer would still have bought it but for a lesser price. The existence of such a defect limits the right of a buyer to a reduction of the price.

That article also states that a “seller warrants the buyer against redhibitory defects, or vices, in the thing sold.” It is inherent in a redhibitory vice that it be latent and must have existed at time of sale.

Before a plaintiff can bring an action in redhibition, he must allege one of the basic elements of the action, that is, that the house is either absolutely useless for its intended purpose or its use is so inconvenient or imperfect that, judged by the reasonable person standard, had he known of the defect, he would never have purchased it. Upon review of the record, we do not find that Mr. Orr met that burden of proof on his action in redhibition.

His testimony was that he purchased the home in 2005 and discovered the cracked slab shortly afterward when he was renovating. He completed the renovations without doing any repairs on the slab. He and his family lived in the |9house until October 2008, and, after a few months, they rented the home to another family for $1,300 a month. At the time of trial, in 2011, the home was still rented out. We do not find this meets the requirements of La. C.C. art. 2520. Accordingly, we do not find the trial court erred in dismissing all of Mr. Orr’s claims against all defendants.

For the foregoing reasons, we affirm the judgment of the trial court.

AFFIRMED

      . La. R.S. 37:1455; Cousins v. Realty Ventures, Inc., 01-1223 (La.App. 5 Cir. 1/14/03), 844 So.2d 860, writ denied, 03-1583 (La. 10/3/03), 855 So.2d 316, writ denied, 03-1584 (La. 10/3/03), 855 So.2d 317.

      . La. R.S. 37:1455(A)(27).

      . Smith v. Remodeling Serv., Inc., 94-589 (La. App. 5 Cir. 12/14/94), 648 So.2d 995.

      . La. C.C. art. 1953.

      . Color Stone Inti., Inc. v. Last Chance CDP, LLC, 08-35 (La.App. 5 Cir. 5/27/08), 986 So.2d 707.

      . Adams v. Sysco Food Serv. of New Orleans, 07-935 (La.App. 5 Cir. 6/30/08), 990 So.2d 34.

      . La. C.C. art. 2520.

      . Id.

      . Encalade v. Coast Quality Const. Corp., 00-925 (La.App. 5 Cir. 10/31/00), 772 So.2d 244, writ denied, 00-3229 (La.1/26/01), 782 So.2d 634.


author: MARC E. JOHNSON, Judge.

text:
    Mark DELESDERNIER, Jr. v. Mark DELESDERNIER, III and Michael R. Delesdernier.
    No. 12-CA-38.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 31, 2012.
    Rehearing Denied Aug. 6, 2012.

      Bennett Wolff, Tracy G. Sheppard, Attorney at Law, Metairie, LA, for Plain-tiffiAppellant.
    David M. Prados, Attorney at Law, New Orleans, LA, for Defendant/Appellee-2nd Appellant.

      Panel composed of Judges MARION F. EDWARDS, FREDERICKA HOMBERG WICKER, and MARC E. JOHNSON.
   MARC E. JOHNSON, Judge.

li>This lawsuit involves past due spousal support and the supplemental partition of community property. Marc Delesdernier, Jr. appeals a judgment of the trial court awarding Vinca Carevich Delesdernier past due spousal support, and Ms. Deles-dernier appeals a judgment of the trial court denying her Petition for Supplemental Partition of Community Property. For the reason that follow, we amend the judgment of past due spousal support and affirm it as amended, and affirm the judgment denying the supplemental partition of community property.

FACTS & PROCEDURAL HISTORY

The parties were married in June 1956 and had three children. In October 1982, Mr. Delesdernier filed a Petition for Divorce based on the parties living separate and apart for one year. A judgment of divorce was rendered on June 25, |a1984. In the judgment of divorce, Mr. Delesder-nier was ordered to pay $2,700 per month in alimony and to maintain a $250,000 life insurance policy on his life payable to Ms. Delesdernier. He was also ordered to provide Ms. Delesdernier with a replacement vehicle every five years beginning two years from the date of the judgment. On the same day of the divorce judgment, the parties entered into a community property settlement.

Thereafter, Mr. Delesdernier paid $2,700 per month from the date of the divorce judgment through the end of 1986. According to Ms. Delesdernier, Mr. Deles-dernier reduced the monthly payment to $1,000 in 1987 and paid the reduced monthly payment through August 1998. In August 1998, Mr. Delesdernier increased the monthly payment to $1,500, which he continued to pay through the time the rule was filed. Mr. Delesdernier admitted reducing the monthly payment at some point, but testified he did not recall ever paying less than $1,500 per month. There was no documentary evidence regarding the monthly payments despite Ms. Delesdernier’s claim that she kept a ledger of all payments. She indicated during her November 22, 2010 deposition that she was unable to find the ledger but had seen it two months earlier. Mr. Delesdernier stated his records from 1986-2005 were destroyed as a result of Hurricane Katrina.

Contrary to the requirements of the 1984 divorce judgment, Mr. Delesdernier did not provide Ms. Delesdernier a replacement vehicle every five years. However, he did buy her a Mercury Grand Marquis in 1998. According to Mr. Deles-dernier, Ms. Delesdernier never asked for a car until 1998. Although the divorce judgment stated the car was to be financed over 60 months with the car |4note constituting alimony, Mr. Delesdernier could not recall anything about how the car was paid for. Ms. Delesdernier indicated that the car was financed for 60 months with a monthly note of $534. She stated she paid the monthly car note because she was worried about what would happen if Mr. Delesdernier failed to pay the note. She explained that Mr. Delesdernier increased monthly spousal support from $1,000 to $1,500 after the purchase of the car.

On March 25, 2010, Ms. Delesdernier filed a Rule for Contempt and Arrearages seeking past due spousal support for the amount Mr. Delesdernier underpaid. In an Amended Rule for Contempt and Ar-rearages, Ms. Delesdernier indicated that she sought past due spousal support for the underpayment from 1986 through the date of filing. She also sought monthly car payments from 1986 through the date of filing claiming Mr. Delesdernier failed to provide her with a new car every five years as required by the divorce judgment.

On the same day, Ms. Delesdernier also filed a Petition for Supplemental Partition of Community Property seeking the partition of the community’s interest in Mr. Delesdernier’s Crescent River Port Pilots’ Association Pension Plan (“CRPPA Pension”). She alleged the CRPPA Pension had not been partitioned in the 1984 community property agreement.

Mr. Delesdernier responded to the filings by filing a Rule to Enforce ExtraJudicial Modification of Spousal Support and to Terminate or Reduce Spousal Support. He also asserted various affirmative defenses including equitable estoppel and laches. He subsequently filed an exception of prescription on the arrearages, which was denied after a hearing.

On June 30, 2011, the parties proceeded to a hearing on the spousal support issues. The trial court took the matter under advisement and rendered a judgment, without reasons, on August 31, 2011. In its judgment, the trial court found Mr. | ^Delesdernier owed $596,168 in spousal support arrearages plus interest from the date each payment was due. The trial court specifically found there was no extrajudicial modification or mutual agreement between the parties to reduce the spousal support ordered in the 1984 divorce judgment. The trial court further granted Mr. Delesdernier’s rule to terminate spousal support, with the exception of the life insurance policy which it ordered Mr. Deles-dernier continue to maintain. Mr. Deles-dernier timely filed a suspensive appeal.

Thereafter, on October 6, 2011, the parties proceeded to a traversal on the community property for a determination of whether the CRPPA Pension was separate or community property for purposes of Ms. Delesdernier’s Petition for Supplemental Partition. The trial court rendered judgment on October 12, 2011 denying Ms. Delesdernier’s Motion to Traverse finding that the 1984 community property agreement acknowledged complete liquidation of community assets and released Mr. Deles-dernier from further community property claims. The trial court also found that Ms. Delesdernier waived her interest in the CRPPA Pension in exchange for the $250,000 life insurance policy Mr. Deles-dernier was ordered to maintain in the 1984 divorce judgment. Ms. Delesdernier timely appealed this judgment.

ISSUES

Each party raises several issues in connection with the judgment each challenges. In his appeal, Mr. Delesdernier raises four issues relating to the judgment for arrear-ages: (1) the trial court erred in finding Ms. Delesdernier’s claim for arrearages was not prescribed; (2) the trial court erred in concluding he and Ms. Delesdernier did not confect an extrajudicial modification of the 1984 spousal support award wherein they agreed he would reduce spousal support to $1,500 per month; (3) the trial court erred in refusing to consider his affirmative | fidefenses; and (4) the trial court erred in its calculation of arrearages relating to the replacement automobile.

In her appeal, Ms. Delesdernier raises the following issues relating to the judgment involving the CRPPA Pension: (1) the trial court erred in finding the divestiture language contained in the community property settlement agreement precluded the partition of the CRPPA Pension; (2) the trial court erred in finding she waived her interest in the CRPPA Pension in exchange for the $250,000 life insurance policy considering the language of the community property settlement agreement and even the inadmissible extrinsic evidence; and (3) the trial court erred in allowing parole evidence to determine the intent of the parties regarding the CRPPA Pension and the life insurance policy.

MOTION TO DISMISS ISSUES

After Ms. Delesdernier filed her appel-lee brief in response to his appeal, Mr. Delesdernier filed a Motion to Dismiss with this Court seeking to dismiss two issues raised by Ms. Delesdernier in her appellee brief.

In her appellee brief, Ms. Deles-dernier not only responded to Mr. Deles-dernier’s arguments but also claimed the trial court erred in denying attorney’s fees in connection with her Rule for Arrearages and erred in terminating Mr. Delesdernier’s spousal support obligation. Mr. De-lesdernier seeks to dismiss these two issues on the basis Ms. Delesdernier failed to file an answer to the appeal and, therefore, is precluded from raising these issues. We agree and grant Mr. Delesder-nier’s Motion to Dismiss these two issues raised in Ms. Delesdernier’s appellee brief.

17An appeal is the exercise of the right of a party to have a judgment of a trial court revised, modified, set aside or reversed by an appellate court. La. C.C.P. art. 2082. Alternatively, an appellee who “desires to have the judgment modified, revised, or reversed in part” must file an answer to the appeal “not later than fifteen days after the return day or the lodging of the record whichever is later.” La. C.C.P. art. 2133(A); Foreman v. Babin, 04-423 (La. App. 5 Cir. 10/12/04), 887 So.2d 143, 153.

The record in this case was lodged January 12, 2012. The trial court ordered the appeal be returnable to this Court “in accordance with law.” Under La. C.C.P. art. 2125, an appeal shall be returnable to the appellate court 45 days from the date estimated costs are paid. Our records reflect costs were paid on October 6, 2011, which would make the return date November 20, 2011. The lodging of the record was later; thus, Ms. Delesdernier had 15 days from January 12, 2012, or until January 27, 2012 to answer the appeal. Ms. Delesdernier never filed an answer. Even if we were to construe her appellee brief as an answer, it was not filed until March 16, 2012, well beyond the 15-day time period to file an answer. We further note that Ms. Deles-dernier did not challenge the August 31, 2011 judgment in her appeal of the October 12, 2011 judgment.

A party who has not appealed the judgment or answered the appeal may not seek to have the trial court’s judgment modified in its favor. Saacks v. Saacks, 97-570 (La.App. 5 Cir. 1/27/98), 708 So.2d 1077, 1078-79, vmt denied, 98-502 (La.4/3/98), 717 So.2d 232. Therefore, we will not consider Ms. Delesdernier’s two issues relating to the August 31, 2011 judgment raised in her appellee brief, and grant Mr. Delesdernier’s motion to dismiss these two issues from Ms. Delesdernier’s appellee brief.

\JLAW & ANALYSIS

Spousal Support

Prescription

Mr. Delesdernier argues the trial court erred in denying his exception of prescription. An action for spousal support arrearages is subject to a liberative prescription of five years. La. C.C. art. 3497.1. Thus, unless there has been an interruption of prescription, Ms. Delesder-nier’s rule seeking arrearages from 1986 through March 2005, or five years prior to the date the rule was filed, is prescribed.

Prescription is interrupted when an obli-gee commences action against the obligor and when the obligor acknowledges the right of the obligee. La. C.C. arts. 3462, 3464; Evertsen v. Jenssen, 552 So.2d 1277, 1278 (LaApp. 5th Cir.1989). The jurisprudence unanimously holds that payments made pursuant to a judgment ordering support are an acknowledgement of the debt and interrupt prescription. Id.; Weatherspoon v. Weatherspoon, 433 So.2d 319, 321 (LaApp. 1st Cir.1983); Reed v. Reed, 399 So.2d 1255, 1258 (LaApp. 4th Cir.1981); Morasco v. Metcalf, 381 So.2d 901, 902-03 (LaApp. 3rd Cir.1980); Manning v. Manning, 259 So.2d 358, 359 (La. App. 2nd Cir.1972).

In this case, the parties agree that Mr. Delesdernier made a spousal support payment every month for the past 26 years. Because there has never been a five-year lapse between payments, Ms. Delesdernier’s claim for spousal support arrearages from 1986 through the time she filed her rule has not prescribed. Therefore, the trial court correctly denied Mr. Delesder-nier’s exception of prescription.

|flMr. Delesdernier argues the 40 years of jurisprudence on the issue of whether monthly spousal support interrupts prescription is incorrect and implores us to reconsider the issue. He contends none of the cases make the crucial classification of spousal support as either a conjunctive or single obligation. He asserts spousal support is a conjunctive obligation with each support payment subject to its own prescriptive period, similar to rent payments.

Despite Mr. Delesdernier’s impassioned plea, we find no merit in his argument and no error in the jurisprudence. One of the earliest cases, Davis v. Contorno, 234 So.2d 470, 474 (La.App. 1st Cir.1970), found that support is a single obligation. Thus, Mr. Delesdernier’s monthly payments pursuant to the 1984 spousal support judgment were an acknowledgement of a single support obligation sufficient to interrupt the prescriptive period provided for by La. C.C. art. 3497.1.

As part of his prescription argument, Mr. Delesdernier also argues that his monthly payments should be imputed to the oldest debts. Under the law of imputation, Mr. Delesdernier contends he paid the full amount of spousal support through 1998. Under this theory, Mr. Delesdernier asserts Ms. Delesdernier’s claim for arrearages prescribed five years later, or in 2003. Under La. C.C. art. 1864, an obligor who owes several debts to an obli-gee has the right to impute payment to the debt he intends to pay. Because spousal support is a single obligation, the law of imputation does not apply.

Extrajudicial Modification

Mr. Delesdernier next argues that the trial court erred in finding the parties had not confected an extrajudicial modification of the 1984 divorce judgment. He 110maintains he and Ms. Delesdernier agreed that he would reduce monthly spousal support payments to $1,500.

Generally, a judgment ordering spousal support remains in full force until the party ordered to pay it has the judgment modified or terminated by a court. Halcomb v. Halcomb, 352 So.2d 1013, 1016 (La.1977); Bourgeois v. Bourgeois, 09-106 (La.App. 5 Cir. 6/23/09), 16 So.3d 431, 439. Unless reduction, modification, or termination is provided for by operation of law, the support judgment remains enforceable even if a cause for reduction may have occurred which would, upon proper suit, warrant such a reduction. Halcomb, supra. The policy behind this rule is that the law does not want to encourage those owing spousal support to engage in “self-help” by unilaterally relieving themselves of the obligation to comply. Id. The Louisiana Supreme Court has explained that, “[a]ny other rule of law would greatly impair the sanctity of judgments and the orderly processes of law.” Halcomb, 352 So.2d at 1016.

An exception to this general rule is when the parties have “clearly agreed” to waive or to otherwise modify the eourt-ordered payments. Vallaire v. Vallaire, 433 So.2d 315, 318 (La.App. 1st Cir.1983). Mere acquiescence in the obligor’s failure to pay the full amount of support does not constitute a waiver. Id.; Mizell v. Mizell, 37,004 (La.App. 2 Cir. 3/7/03), 839 So.2d 1222, 1227; McDaniel v. McDaniel, 03-1763 (La.App. 3 Cir. 5/19/04), 878 So.2d 686, 691. The party asserting the existence of an extrajudicial modification has the burden of proving a clear and specific agreement. Rachal v. Rachal, 35,074 (La. App. 2 Cir. 10/12/01), 795 So.2d 1286, 1289.

In this case, Mr. Delesdernier testified he and Ms. Delesdernier agreed that he would reduce the monthly support payments to $1,500, but they did not have a written agreement to that effect. Mr. De-lesdernier did not recall when they Indiscussed the matter, but explained that when he told Ms. Delesdernier he would be reducing the support payments, she responded “okay.” He took her response to mean she was agreeable to the reduction. Mr. Delesdernier stated Ms. Deles-dernier never protested the lower payments and did nothing to make him believe the two did not have an agreement for the lower amount. Mr. Delesdernier admitted he and Ms. Delesdernier rarely spoke to each other after the divorce. He stated they did not speak to each other between the time they discussed the reduction of support payments and the time she requested a car in 1998, which was also the last conversation he had with her prior to filing the present rule for arrearages.

Mr. Delesdernier indicated he reduced the payments because of financial problems he started to experience with various business ventures that ultimately caused him to file for bankruptcy in 1988. He stated he was dismissed from bankruptcy in 1989 and that his financial problems were resolved by 2000. Mr. Delesdernier testified he never thought of increasing the support payments after resolution of his financial problems because he believed he and Ms. Delesdernier had an agreement for the $1,500 per month. He further stated he never filed a rule to reduce spousal support because of the agreement.

Ms. Delesdernier testified that Mr. De-lesdernier paid the full amount of support for the first two years after the judgment. He then told her that he was having difficulty paying the $2,700 per month, which is when he decreased the monthly payments to $1,000. According to Ms. Deles-dernier, she asked when he would correct the deficit at which time Mr. Delesdernier threatened that she would not get anything if she pressed him. She stated she did not agree to the $1,000 monthly payments, but rather just let the reduction happen because she could not handle any confrontation with Mr. Delesdernier. She stated she did not pursue the | ^matter legally because it was too much pressure for her to handle. She explained that she sometimes had to call and track Mr. Deles-dernier down to get him to pay the $1,000 payments and those confrontations made her a nervous wreck. When she told Mr. Delesdernier that he still owed her alimony in 1998 at the time of the car purchase, he had no response. Ms. Delesdernier testified it took her over 20 years to file for arrearages because she was intimidated by Mr. Delesdernier.

Based on this evidence, the trial court found the parties had not entered into an agreement to reduce spousal support payments. To the contrary, the trial court specifically found Mr. Delesdernier unilaterally reduced the amount of his monthly payment and that Ms. Delesdernier merely acquiesced to the reduction.

The trial court is vested with much discretion in alimony matters and its findings may not be disturbed absent manifest error. A trial court’s discretion in spousal support matters may be disturbed when there has been manifest error in factual determinations. McMullen v. McMullen, 11-220 (LaApp. 5 Cir. 12/13/11), 82 So.3d 418, 421.

After review of the record, we do not find the trial court’s finding was manifestly erroneous. None of the evidence presented substantiated Mr. Delesdernier’s contention that he and Ms. Delesdernier had entered into an agreement to reduce the spousal support payments, and at no time did Mr. Delesdernier seek to obtain a written agreement or to formally modify the judgment.

Affirmative Defenses

In his third assignment of error, Mr. Delesdernier contends the trial court erred in failing to consider his affirmative defenses. The record shows Mr. Deles-dernier filed a pleading captioned “Affirmative Defenses of Estoppel, Laches, and Extrajudicial Modification.” He subsequently filed a supplemental 1^motion asserting the affirmative defense of detrimental reliance. In his memorandum in support of his defenses, he argued that equitable estoppel/detrimental reliance applied to preclude Ms. Delesdernier from collecting arrearages because he relied, over the past 24 years, on her agreement to allow him to pay a reduced amount of spousal support because of the financial hardship he faced. He further argued the doctrine of laches precluded Ms. Delesder-nier from the arrearages because of her inexcusable delay in instituting suit. In its judgment awarding arrearages, the trial court denied Mr. Delesdernier’s defenses of estoppel and laches after concluding the defenses had no application in a matter for arrearages on a judgment of spousal support.

We first note that the doctrine of laches is inapplicable in Louisiana. Laches is an equitable doctrine found in common law and its purpose is to bar prosecution of stale and antiquated demands which would cause injustice if pursued. Molero v. Bass, 322 So.2d 452, 454 (La.App. 4th Cir.1976), writ denied, 325 So.2d 609 (La.1976). It has always been the general view that the common law doctrine of laches has no place in Louisiana law; however, there were some cases that left open the possibility of the application of the doctrine in certain cases. In Fishbein v. State ex rel. Louisiana State University Health Sciences Center, 04-2482 (La.4/12/05), 898 So.2d 1260, 1270, the Louisiana Supreme Court repudiated those cases that allow the doctrine of laches by explaining the doctrine is in conflict Louisiana law regarding prescription. Accordingly, we find no error in the trial court’s refusal to apply the doctrine of laches.

Regarding Mr. Delesdernier’s claim of equitable estoppel/detrimental reliance, “equity will not nullify or reduce an accumulated alimony ... award until 1 uthe judgment is altered or amended by a subsequent judgment or is terminated by operation of law.” Vallaire, 433 So.2d at 317; See also, Neiv v. New, 93-702 (La. App. 5 Cir. 1/25/94), 631 So.2d 1183, 1187, writ denied, 94-470 (La.4/4/94), 635 So.2d 1113. Further, equitable considerations and estoppel cannot prevail in conflict with the positive law. In re Succession of Bailey, 11-147 (La.App. 5 Cir. 11/29/11), 82 So.3d 322, 326.

Louisiana Code of Civil Procedure article 3946 provides that “[w]hen a payment of support under a judgment is in arrears .... the court shall render judgment for the amount of past due support.” (Emphasis added.) The trial court has no discretion once it is proven that support payments are in arrears. New, supra. Thus, the trial court did not err in denying Mr. Delesdernier’s defense of equitable estop-pel/detrimental reliance.

Calculation

In his last assignment of error, Mr. Delesdernier asserts the trial court erroneously calculated the amount of ar-rearages. He specifically challenges the trial court’s calculation relating to the replacement automobile. He contends there is no evidence to support a finding that the amount of arrearages for failing to provide a replacement vehicle from 1986 through the present was $534 per month.

The spousal support judgment ordered Mr. Delesdernier to “provide-a replacement automobile, comparable to her present automobile every five (5) years beginning two (2) years from the date of this judgment. Said cars will be financed over a sixty month period and the car payments shall constitute alimony.” Mr. Delesdernier admitted he only provided one replacement vehicle for Ms. | j ¡¡Deles dernier and that was in 1998. Further, Ms. Delesder-nier testified that she paid the monthly note for the 1998 vehicle, which was $584 per month financed over five years. Thus, the record clearly establishes that Mr. De-lesdernier was in arrearages for the cost of the replacement vehicles.

The trial court did not provide a breakdown of its arrearages award. However, it appears from the record that the trial court used the calculations provided by Ms. Delesdernier, which amounted to $161,268 in arrearages for the replacement vehicles based on $584 per month from July 1986 through August 2011. We find the trial court erred in its calculation of these arrearages.

As mover for the arrearages, Ms. Delesdernier bore the burden of proving the amount of the arrears. Jones v. Jones, 99-35 (La-App. 3 Cir. 7/14/99), 747 So.2d 94, 97; Singleton v. Singleton, 423 So.2d 791 (LaApp. 4th Cir.1982), writ denied, 427 So.2d 1210 (La.1983). The only evidence Ms. Delesdernier offered to prove the amount of arrearages owed for the replacement vehicles was the fact that the monthly car note for the replacement vehicle in 1998 was $534. Ms. Delesdernier failed to present any evidence regarding the type or value of the automobile she drove in 1986, what would have constituted a comparable automobile from 1986 through 1998, and how much it would have cost to replace her automobile with a comparable one during that time.

Because there was inadequate evidence regarding the value of a replacement vehicle from 1986 until August 1998, we find Ms. Delesdernier failed to meet her burden of proof of the amount of arrearages owed during this time. Therefore, we |,6reduce the amount of arrearages Mr. Delesdernier was ordered to pay by $77,430, and amend the August 31, 2011 judgment to reflect the total amount of arrearages owed to be $518,738.

Partition of CRPPA Pension

We next address Ms. Delesdernier’s appeal from the trial court’s October 12, 2011 judgment relating to the CRPPA Pension.

Ms. Delesdernier first argues the trial court erred in finding the divestiture language contained in the community property settlement agreement (“the Agreement”) precluded the partition of the CRPPA Pension. She asserts that because the CRPPA Pension was not specifically referenced in the Agreement, it retained community property status and is subject to a supplemental partition.

Ms. Delesdernier next argues the trial court erred in finding she waived her interest in the CRPPA Pension in exchange for the $250,000 life insurance policy. She contends there is no language in either the divorce judgment or the Agreement to this effect. Ms. Delesdernier further argues the trial court erred in allowing parole evidence to determine the intent of the parties regarding the CRPPA Pension and the life insurance policy. She maintains that the Agreement is unambiguous and, therefore, the trial court should not have considered extrinsic evidence to ascertain the intent of the parties. Ms. Delesdernier finally contends that even considering the inadmissible parole evidence, the trial court erred in finding there was an agreement outside the community property settlement wherein she waived her right to the CRPPA Pension.

In its October 12, 2011 judgment, the trial court found that Ms. Delesdernier was aware of the CRPPA Pension at the time she entered into the community property settlement agreement and that she “acknowledged a complete liquidation |17of community assets and released and discharged Mr. Delesdernier from future community property claims.” It further determined that Ms. Delesdernier knowingly agreed to waive her interest in the CRPPA Pension in exchange for the $250,000 term life insurance policy.

In the Agreement, the parties agreed Ms. Delesdernier would receive, among other things, the marital home and most of the property therein; various properties; a $250,000 term life insurance policy on Mr. Delesdernier’s life; a $10,000 life insurance policy on her life; and a 1981 Mercedes. Mr. Delesdernier was to receive, among other things, certain properties; his retirement account with the Crescent River Port Pilot’s HR-10 Retirement Plan; various stock, including one share of Crescent River Port Pilots Association stock; and a 1982 Porsche.

Paragraph eight of the Agreement stated:

Mark and Vinca further agree that they have hereby accomplished a complete liquidation of the community of acquets and gains formerly existing between them, and they do accordingly, hereby mutually release and forever discharge each other from any and all further claims and demands and any and all further accountings between them. It is the intention of the parties that henceforth there shall be, as between the, only such rights and obligations as are specifically provided for in this agreement, and the parties acknowledge that the allocation made to each of them has resulted in each party’s [sic] receiving an equal share of the community property-

The Louisiana Supreme Court has explained that general divestiture language does not necessarily divest a non-employee spouse of her right to her employee spouse’s pension when the community property settlement agreement does not expressly address the employee spouse’s pension. The question of whether the agreement divests the non-employee spouse of any community property rights in the pension depends on the intent of the parties. Jennings v. Turner, 01-681 (La.11/28/01), 803 So.2d 968, 965.

[18Both parties agree that the Agreement does not specifically mention the CRPPA Pension. Ms. Delesdernier argues that because the Agreement does not mention the CRPPA Pension, it is still community property that is subject to partition. Mr. Delesdernier maintains that the parties discussed the CRPPA Pension prior to executing the Agreement and agreed Ms. Delesdernier would accept a $250,000 term life insurance policy in lieu of the pension. The issue of whether a pension was considered in a property settlement is a question of fact and the fact-finder is afforded much discretion. Robinson v. Robinson, 99-3097 (La.1/17/01), 778 So.2d 1105,1119.

Whether the divestiture language in the Agreement divested Ms. Delesdernier of her right to the CRPPA Pension depends on the parties’ intent.

The community property settlement agreement between Mr. Delesdernier and Ms. Delesdernier is in the nature of a contract. Therefore, in interpreting the provisions of the Agreement, general rules of contract interpretation apply. See Walker v. Walker, 05-879 (La.App. 5 Cir. 3/28/06), 927 So.2d 468, 471. Louisiana Civil Code article 2046 provides that “[w]hen the words of a contract are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties’ intent.” Under Louisiana Civil Code article 3076, which provides a supplementary rule of construction governing compromise agreements, “[a] compromise settles only those differences that the parties clearly intended to settle, including the necessary consequences of what they express.”

In determining those matters the parties intended to settle, we must consider the Agreement as a whole and in light of attending events and circumstances. Ortego v. State, Dept. of Transp. and Development, 96-1322 (La.2/25/97), 689 So.2d 1358, 1363. The meaning and intent of the parties to a compromise is usually determined from the four corners of the agreement, and extrinsic or parole 113evidence is inadmissible to explain or contradict the terms of the agreement. Id. However, when a dispute arises as to the scope of a compromise agreement, extrinsic evidence can be considered to determine exactly what differences the parties intended to settle. Id., 689 So.2d at 1363-64, citing Moak v. American Automobile Ins. Co., 242 La. 160, 134 So.2d 911 (1961). Accordingly, we do not find the trial court erred in considering parole evidence to determine the intent of Mr. De-lesdernier and Ms. Delesdernier in con-fecting the Agreement.

Mr. Delesdernier testified that he and his attorney discussed issues relating to the community property settlement. He provided documentation to his attorney regarding his CRPPA Pension, which was subsequently shared with Ms. Deles-dernier’s attorney. Mr. Delesdernier further stated he discussed his CRPPA Pension with both his attorney and Ms. Delesdernier. He indicated Ms. Deles-dernier was concerned about the CRPPA Pension because she would not necessarily benefit from the pension because he was not yet vested in the pension, and if he died or stopped working before reaching retirement, she would receive nothing. According to Mr. Delesdernier, Ms. Delesdernier suggested that she receive an insurance policy in lieu of the CRPPA Pension.

Ms. Delesdernier testified that she was represented by counsel at the time of the Agreement. She stated she entered into the Agreement fully and voluntarily after being advised of her rights regarding community property. She admitted there were settlement discussions prior to the Agreement being signed. She stated she knew there were two different retirement plans, the CRPPA Pension and the HR-10 retirement. Ms. Delesdernier indicated she was aware that Mr. Delesdernier did not have the years of service required for retirement and knew that if he died, she would not be able to collect benefits under the CRPPA Pension. 120When asked, she agreed that this was the reason she wanted Mr. Delesdernier to purchase the life insurance policy.

Based on the record, we do not find the trial court was manifestly erroneous in finding the parties intended Ms. Delesder-nier to have a $250,000 life insurance policy on Mr. Delesdernier’s life in lien of the CRPPA Pension at the time of the Agreement and, thus, finding the CRPPA Pension was no longer community property subject to partition under a petition for supplemental partition.

DECREE

For the reasons above, we affirm the trial court’s August 31, 2011 judgment finding Mr. Delesdernier in arrearages for spousal support from July 1986 through August 2011. We amend the trial court’s award of arrearages from $596,168 to $518,738, upon finding Ms. Delesdernier failed to prove the value of the replacement vehicle owed under the support judgment from July 1986 through July 1998. We further affirm the trial court’s October 12, 2011 judgment finding the CRPPA Pension was not subject to partition. Each party is to bear his own cost for this appeal.

AUGUST 31, 2011 JUDGMENT AMENDED AND AFFIRMED AS AMENDED; OCTOBER 12, 2011 JUDGMENT AFFIRMED

      . After both judgments were rendered and notices of appeal were filed, Ms. Delesdernier passed away and her two children, Mark De-lesdemier. III, and Michael Delesdernier, were substituted as parties.

      . Child support was not an issue because all three children had reached the age of majority at the time of the divorce.

      .Ms. Delesdernier was declared to be an unavailable witness. As such, the parties agreed to use her November 22, 2010 deposition testimony in lieu of live testimony at the hearings on spousal support arrearages and supplemental partition of community property-

      . A spousal support obligation terminates by operation of law upon the death of either party. La. C.C. art. 115. In this case, Ms. Delesdernier passed away on October 28, 2011. The judgment ordering termination of spousal support was rendered on August 31, 2011. Thus, only two months of spousal support are at issue.

      . Prior to June 25, 1984, an action for alimony arrearages was subject to a three-year prescriptive period under La. C.C. art. 3538. On June 25, 1984, the same date as the divorce judgment ordering Mr. Delesdernier to pay spousal support, La. C.C. art. 3497.1 was enacted and extended the prescriptive period for spousal support arrearages to five years. Acts 1984, No. 147, § 1.

      . Mr. Delesdernier contends the trial court found he paid a total of $380,500 over the past 24 years. Mr. Delesdernier asserts that if he owed $2,700 every month, he owed a total of $815,400. Applying the law of imputation, Mr. Delesdernier maintains the $380,500 he paid covered the full amount of spousal support through 1998. Although we question the accuracy of these calculations, the calculations are irrelevant to our analysis.

      . Equitable estoppel is defined as the effect of the voluntary conduct of a party whereby he is barred from asserting rights against another party who justifiably relied upon such conduct and changed his position to his detriment as a result of such reliance. In re Succession of Bailey, 11-147 (La.App. 5 Cir. 11/29/11), 82 So.3d 322, 326.

      . We further note that even if we were to consider the merits of an equitable estoppel claim, it would fail. Mr. Delesdernier has failed to show that his legal obligation, which remained in effect until modified or terminated by a court, changed in any way as the result of any reliance on Ms. Delesdernier’s conduct, or that his reliance was justified. See McManus v. McManus, 428 So.2d 854, 858 (La.App. 1st Cir.1983).

      . The record does not contain any evidence as to what month in 1998 the vehicle was purchased. However, the parties seem to agree the vehicle was purchased in August 1998.

      . Ms. Delesdernier provided a breakdown of arrearages owed as follows: $434,900 for the underpayment of the $2,700 per month owed from July 1986 through August 2011, and $161,268 for the failure to pay for a replacement vehicle from July 1986 through August 2011. Adding these two figures together equals $596,168, which is the amount the trial court awarded.

      .$545 per month for 145 months from July 1986 through July 1998

      . At the time of the agreement, Mr. Deles-dernier had 19 years in the system, but needed 25 years to retire.