Page et al v. Dunn et al, No. 2:2016cv17261 - Document 43 (E.D. La. 2017)
Court Description: ORDER AND REASONS denying 25 Motion for Summary Judgment. Signed by Judge Susie Morgan on 11/21/2017. (clc)
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Page et al v. Dunn et al Doc. 43 U N ITED S TATES D ISTRICT COU RT EASTERN D ISTRICT OF LOU ISIAN A BRAN D ON PAGE, ET AL Plain tiffs CIVIL ACTION VERSU S N O. 16 -3 6 2 1 CRYSTAL ALLEY D U N N , ET AL D e fe n d an ts SECTION : “E”( 2 ) ORD ER AN D REAS ON S Before the Court is a m otion for sum m ary judgm ent filed by Defendants Crystal Alley Dunn and Bradley T. Dunn. 1 The m otion is opposed. 2 For the reasons that follow, the m otion is D EN IED . BACKGROU N D On May 26, 20 16, Plaintiffs Brandon an d Stephanie Page bought a hom e in Metairie, Louisiana “AS IS” from Defendants Crystal and Bradley Dunn. 3 After m oving into their new hom e, Plaintiffs “discovered extensive, undisclosed, hidden, and intentionally concealed, redhibitory defects within the property.”4 Plaintiffs allege that Mr. Dunn, “a contractor by trade,” m ade “substantial im provem ents and repairs” on the property before selling it to Plaintiffs, 5 but that Mr. Dunn failed to report any of those repairs or the defects the repairs were m eant to rem edy in the hom e’s Louisiana Residential Property Disclosures form . 6 “On or about May 3, 20 16,” before the sale of the hom e closed, “Michael J . Turner Hom e Inspections reviewed 1 R. Doc. 25. R. Doc. 29. 3 R. Doc. 22 at ¶ VI, VIII; R. Doc. 29-2 at ¶ 13. 4 Id. at ¶ XII. 5 Id. at ¶ IV. 6 Id. at ¶ XIII. Louisiana Revised Statutes 9:3198(A)(1) states “The seller of residential real property shall com plete a property disclosure docum ent in a form prescribed by the Louisiana Real Estate Com m ission or a form that contains at least the m inim um language prescribed by the com m ission .” 2 1 Dockets.Justia.com the Louisiana Residential Property Disclosure[], noted that no prior repairs or water intrusion had been disclosed[,] and conducted an [sic] visual inspection [of the property] pursuant to La. R.S. 37:1471.”7 Because Mr. Turner conducted only a visual inspection, “[h]idden or concealed defects were not included in the report.”8 Two m onths after the sale becam e final, having concerns with the hom e, Plaintiffs contacted Mr. Turner to conduct a follow up inspection, which took place on J uly 12, 20 16. 9 During this m ore indepth inspection, Mr. Turner concluded extensive water dam age existed in the hom e. 10 According to Plaintiffs: Bradley T. Dunn . . . intentionally and fraudulently concealed, through negative response on the Louisiana Residential Property Disclosures, that the property suffers from drainage problem s. Specifically, the back carport holds standing water. Portions of the slab have been sloped in an effort to correct this problem but is ineffective. There are chronic m oisture problem s on the interior walls of the shed and there is always standing water in the shed requiring m uch of the fram ing to be re-built once the foundation is leveled and drainage problem s elim inated. 11 Bradley T. Dunn further intentionally and fraudulently concealed defects in the property by m arking “N” on the Louisiana Residential Property Disclosures regarding the identity of any defects in the ceiling, interior walls, floor, decks, and exterior walls. 12 Plaintiffs also allege the house contained toxic levels of m old and trapped m oisture at the tim e of sale, which has resulted in “[h]igh levels of actively growing Stachybotrys.”13 Finally, Plaintiffs allege Defendants “m isrepresented . . . that the property had never had term ites or other wood-destroying insects” despite Mr. Dunns’ having contacted 7 R. Doc. 29-2 at ¶ VII. Id. at ¶ VII. 9 R. Doc. 29-6 at 15. 10 Id. 11 R. Doc. 29-2 at ¶ XIII. 12 Id. at ¶ XIV. 13 Id. at ¶ XV (P). 8 2 Envirotec Pest Control Services, LLC in 20 16 “regarding term ites within the [outside] shed.”14 Based on these alleged redhibitory defects, Plaintiffs filed suit against Defendants on Novem ber 18, 20 16 in the 24th J udicial District Court for the Parish of J efferson, State of Louisiana, seeking to rescind the sale. 15 On Decem ber 13, 20 16, Defendants rem oved the case pursuant to this Court’s diversity subject m atter jurisdiction. 16 Defendants now m ove for sum m ary judgm ent. 17 LEGAL STAN D ARD Sum m ary judgm ent is proper only “if the m ovant shows that there is no genuine dispute as to an y m aterial fact and the m ovant is entitled to judgm ent as a m atter of law.”18 “An issue is m aterial if its resolution could affect the outcom e of the action.”19 When assessing whether a m aterial factual dispute exists, the Court considers “all of the eviden ce in the record but refrain[s] from m aking credibility determ inations or weighing the evidence.”20 All reasonable inferences are drawn in favor of the non-m oving party. 21 There is no genuine issue of m aterial fact if, even viewing the evidence in the light m ost favorable to the non-m oving party, no reasonable trier of fact could find for the nonm oving party, thus entitling the m oving party to judgm ent as a m atter of law. 22 “[A] party seeking sum m ary judgm ent always bears the initial responsibility of inform ing the district court of the basis for its m otion[] and identifying those portions of 14 Id. at ¶ XV (V). R. Doc. 1-2. 16 R. Doc. 1. 17 R. Doc. 25. 18 F ED . R. CIV. P. 56; see also Celotex, 477 U.S. at 322– 23. 19 DIRECTV, Inc. v. Robson, 420 F.3d 532, 536 (5th Cir. 20 0 5). 20 Delta & Pine Land Co. v. N ationw ide Agribusiness Ins. Co., 530 F.3d 395, 398 – 99 (5th Cir. 20 0 8); see also Reeves v. Sanderson Plum bing Prods., Inc., 530 U.S. 133, 150 – 51 (20 0 0 ). 21 Little v. Liquid Air Corp., 37 F.3d 10 69, 10 75 (5th Cir. 1994). 22 Hibernia N at. Bank v. Carner, 997 F.2d 94, 98 (5th Cir. 1993) (citin g Am oco Prod. Co. v. Horw ell Energy , Inc., 969 F.2d 146, 147– 48 (5th Cir. 1992)). 15 3 [the record] which it believes dem onstrate the absence of a genuine issue of m aterial fact.”23 If the dispositive issue is one on which the non-m oving party will bear the burden of persuasion at trial, to satisfy Federal Rule of Civil Procedure 56’s burden, the m oving party m ust do one of two things: it “m ay subm it affirm ative evidence that negates an essential elem ent of the nonm oving party’s claim ” or “dem onstrate to the Court that the nonm oving party’s eviden ce is insufficient to establish an essen tial elem ent of the nonm oving party’s claim .”24 When the m oving party chooses the latter option it: m ust affirm atively show the absence of evidence in the record. This m ay require the m oving party to depose the nonm oving party’s witnesses or to establish the inadequacy of docum entary evidence. If there is literally no eviden ce in the record, the m oving party m ay dem onstrate this by reviewing for the court the adm issions, interrogatories, and other exchanges between the parties that are in the record. 25 If the m oving party fails to carry this burden, the m otion m ust be denied. If the m oving party successfully carries its burden, the burden of production then shifts to the non-m oving party to direct the Court’s attention to som ething in the pleadings or other evidence in the record setting forth specific facts sufficient to establish that a genuin e issue of m aterial fact does indeed exist. 26 Thus, the non -m oving party m ay defeat a m otion for sum m ary judgm ent by “calling the Court’s attention to supporting eviden ce already in the record that was overlooked or ignored by the m oving party.”27 “[U]nsubstantiated assertions are not com petent sum m ary judgm ent evidence.”28 Rather, “the party opposing sum m ary judgm ent is required to iden tify specific eviden ce in the record and to articulate the precise m anner in which that evidence supports his or 23 Celtic Marine Corp. v . Jam es C. Justice Cos., 760 F.3d 477, 481 (5th Cir. 20 14) (quoting Celotex, 477 U.S. at 323). 24 Celotex, 477 U.S. at 331. 25 Id. (internal citation om itted). 26 Id. at 322– 25. 27 Id. at 332– 33. 28 Ragas v. Tenn . Gas Pipelin e Co., 136 F.3d 455, 458 (5th Cir. 1998) (citin g Celotex, 477 U.S. at 324). 4 her claim . ‘Rule 56 does not im pose upon the district court a duty to sift through the record in search of evidence to support a party’s opposition to sum m ary judgm ent.’”29 AN ALYSIS Generally, the seller of a hom e im pliedly warrants to the buyer that the property is free from redhibitory vices or defects. 30 Louisiana Civil Code article 2520 defin es a redhibitory defect as one that: renders the thing useless, or its use so inconvenient that it m ust be presum ed that a buyer would not have bought the thing had he known of the defect. The existen ce 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 dim in ishes its usefulness or its value so that it m ust be presum ed that a buyer would still have bought it but for a lesser price. The existence of such a defect lim its the right of a buyer to a reduction of the price. 31 A redhibitory defect m ust be latent and have existed at tim e of sale, as the im plied warranty against redhibitory defects covers only hidden defects, not defects known to the buyer at the tim e of sale. 32 Even when a hom e is sold “as is,” “it is well-settled under Louisiana law that a seller m ay not fail to disclose a defect or actively conceal it and then em ploy a waiver to contract out of its obligation to disclose that defect.”33 In their m otion for sum m ary judgm ent, Defendants argue that sum m ary judgm ent is warranted in this case because Plaintiff’s hom e inspector, Mr. Turner, did not discover 29 Id. (quoting Skotak v. Ten neco Resins, Inc., 953 F.2d 90 9, 915– 16 & n .7 (5th Cir. 1992)) (citing Forsy th v. Barr, 19 F.3d 1527, 1537 (5th Cir. 1994)). 30 La. C.C. art. 2520 . 31 Id. 32 Id. 33 Jones v . W ells Fargo Bank, N .A., 626 F. App’x 50 0 , 50 6 (5th Cir. 20 15); see also Shelton v. Standard/ 70 0 Assocs., 798 So. 2d 60 , 64 (La. 20 0 1) (explain ing that “fraud in the inducem ent of a contract cannot be waived,” and that “although the warranty against redhibitory defects m ay be excluded or lim ited, a seller cannot contract against his own fraud and relieve him self of liability to fraudulently induced buyers”); Schm uck v. Men ees, 131 So. 3d 277, 281 (La. App. 5 Cir. 20 13) (“[A] seller with kn owledge of a redhibitory defect, who, rather than in form in g the buyer of the defect opts to obtain a waiver of the warranty im plied by law, com m its fraud, which vitiates the waiver because it is not m ade in good faith.” (citation and internal quotation m arks om itted)). 5 “any sign ificant problem s with the hom e in question”34 and testified that during his May 3, 20 16 inspection that “he did not detect the presence of m old in the hom e, nor did he suspect the presence of m old.”35 Defendants also subm it they had no knowledge of any defects in the hom e that were not either repaired or disclosed to Plaintiffs prior to sale. 36 Defendants argue “[t]he fact that [P]laintiffs m ay have experienced such problem s after the sale, and after a prolonged period of heavy rain . . . is not sufficient to establish that the com plained of defects existed at the tim e of sale. 37 Contrary to Defendants’ assertion, genuine issues of m aterial fact exist in this case as to whether the defects existed at the tim e of sale and whether Defendants had knowledge of those defects. For exam ple, Defendants contend “[t]here is no evidence that the Dunns experienced any m oisture intrusion problem s or m old related issues in the residence during the entire tim e they lived in the hom e”38 and that “Michael Turner, [P]laintiffs’ hom e inspection expert, does not have any inform ation or reason to believe that the Dunns experienced condensation or m oisture-related problem s in the hom e at any tim e prior to the tim e of his inspection of the hom e on May 3, 20 16.”39 In his supplem ental report, however, Mr. Turner noted that during his follow-up inspection on J uly 12, 20 16: It was evident that water had indeed entered the structure as revealed by som e drywall that had been rem oved with a distinct m usky odor behind the wall and stains being present on the ceiling. The use of a m oisture m eter also determ ined that the wall under the window had a 10 0 % m oisture content. 40 34 R. Doc. 25-1 at 16. Id. 36 R. Doc. 25-19 at ¶ 14, 18 . 37 Id. at 17– 18. 38 R. Doc. 25-19 at ¶ 14. 39 Id. at ¶ 18 . 40 R. Doc. 29-6 at 16. 35 6 Mr. Turner further explained during his deposition that “installation of spray foam insulation,” which Plaintiffs contend was done im properly prior to sale, 41 “could have an effect on water or condensation being captured in the walls.”42 In addition to Mr. Turner’s testim ony, Plaintiffs subm it a report from Environm ental Investigators (“Ei6”), which explain s: CA Labs found high levels of Stachybotrys on the sheetrock; high levels, with hyphae, which indicates that the m old is actively growing. Ei6 opines that the water intrusion in the Page residen ce on Pike Drive has been occurring for an extended period of tim e, defin itely considerably longer than the approxim ately 1 m onth that the Page’s have lived in the house sin ce they purchased it. It is unlikely that the seller/ previous owner was unaware of the water intrusion. 43 Thus, genuine issues of m aterial fact regarding whether the hom e contained water dam age at the tim e of sale and whether the Dunns had knowledge of the water dam age rem ains, and sum m ary judgm ent is in appropriate at this stage of the proceedings. Accordingly; CON CLU SION For the foregoing reasons, IT IS ORD ERED that Defendants’ m otion for sum m ary judgm ent be and hereby is D EN IED . 44 N e w Orle an s , Lo u is ian a, th is 2 1s t d ay o f N o ve m be r, 2 0 17. ________________________________ SU SIE MORGAN U N ITED S TATES D ISTRICT J U D GE 41 R. Doc. 22 at XV(U). R. Doc. 29-6 at 12. 43 R. Doc. 29-3 at 2. 44 R. Doc. 25. 42 7
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