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ALTON EZELL, ET UX. v. D. R. ROBBINS AND FIRST GUARANTY FINANCE

OCTOBER 26, 1988

ALTON EZELL, ET UX.
v.
D. R. ROBBINS AND FIRST GUARANTY FINANCE, INC.



BEFORE ROY NOBLE LEE, SULLIVAN and ZUCCARO

ROY NOBLE LEE, CHIEF JUSTICE, FOR THE COURT:

Alton Ezell and Diana Ezell, his wife, instituted suit in the Chancery Court of Lamar County against D. R. Robbins, *fn1 seeking rescission of a conveyance to them of property, which they had purchased as their residence. At the conclusion of the plaintiffs' evidence, the chancellor sustained the motion of seller Robbins to exclude the evidence

and dismiss the case with prejudice for failure to prove the material allegations of the complaint and failure to prove grounds upon which the relief prayed for could be granted.

 The Ezells have appealed to this Court and assign three (3) errors in the trial below. The assigned errors frame only one issue for consideration by this Court, i.e., whether the lower court committed error in its failure to rescind a contract of sale between the appellants and appellee and erred in failing to award appellant's actual damages to compensate them for the loss.

 Facts

 On New Year's weekend of 1984, the Ezells first looked at the house and land. They were shown the unoccupied house and surrounding land and other improvements by Robbins in the afternoon. Robbins told the Ezells that a fireplace and two window air conditioning units would heat and cool the entire house. He also told them there was no insulation in the house and that they would not need insulation. The Ezells liked the house and later the same day took their children to see it and still later the same day when Robbins stopped by to see them at the home of Mr. Ezell's mother, they agreed to buy the house.

 Robbins was asking $100,000 for the property, but, after some negotiations, agreed to sell it to the Ezells for $94,000. They paid $46,000 down and Robbins financed the remaining $48,000 at 11% interest. The property consisted of 8-10 acres of land with improvements.

 The Ezells contend that Robbins told them there were approximately ten (10) acres but they later learned a boundary line he had pointed out to them was incorrect and, as a result, the Ezell lot was reduced by about 51,000 square feet. The land is adjacent to Little River. In addition to the four bedroom, 4-1/2 bath residence, there is a small two-bedroom structure (referred to as a "mother-in-law house") and a log crib with a lean-to barn. Mrs. Ezell testified that they had looked at several other houses, but that the house offered by Robbins was the only one large enough to accommodate her family, which included four children, and her two brothers, in addition to appellants.

 The Ezells did not have the property surveyed nor did they obtain an appraisal. They moved into the house on Friday, January 13, 1984, and completed the paperwork for the transaction on Monday, January 16, 1984.

 After moving in, the Ezells began experiencing problems with the house. Some showed up immediately but it was sometime between November, 1984, and February, 1985, that the problems became so serious they decided to take legal action. Their testimony indicated that they had experienced plumbing problems, electrical problems, an inadequate sewage disposal system, buckling, warping and cracking of structural timbers, broken and split countertops, loose and sagging kitchen cabinets, inadequate heating, falling interior ceilings, buckling, warped interior walls and doors, unstable chimney, holes in the concrete floor, absence of roof vents, sagging carport, improperly installed gas lines, absence of bathroom vents or heaters, "wavy" roof, and other problems. The Ezells said that the structure did not keep out the elements and that it was impossible to heat and cool the house.

 The Ezells did not seek a voluntary rescission with Robbins. They commenced legal action on April 7, 1985 and in their amended complaint of April 14, 1986 they sought rescission of the contract of sale, cancellation of the land deed of trust, restitution in the amount of $100,706.99, costs and attorney's fees, and an additional amount for the pain, suffering and anxiety suffered by them and their family as a result of the improper construction of the house. The damages sought by the Ezells included the following items:

 (1) Price of the residence $94,000.00

 (2) Expenses necessarily incurred in the purchase ...


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