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Page v. Dunn

United States District Court, E.D. Louisiana

November 21, 2017

BRANDON PAGE, Plaintiffs

         SECTION: “E” (2)



         Before the Court is a motion for summary judgment filed by Defendants Crystal Alley Dunn and Bradley T. Dunn.[1] The motion is opposed.[2] For the reasons that follow, the motion is DENIED.


         On May 26, 2016, Plaintiffs Brandon and Stephanie Page bought a home in Metairie, Louisiana “AS IS” from Defendants Crystal and Bradley Dunn.[3] After moving into their new home, Plaintiffs “discovered extensive, undisclosed, hidden, and intentionally concealed, redhibitory defects within the property.”[4]

         Plaintiffs allege that Mr. Dunn, “a contractor by trade, ” made “substantial improvements 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 meant to remedy in the home's Louisiana Residential Property Disclosures form.[6] “On or about May 3, 2016, ” before the sale of the home closed, “Michael J. Turner Home Inspections reviewed 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 months after the sale became final, having concerns with the home, Plaintiffs contacted Mr. Turner to conduct a follow up inspection, which took place on July 12, 2016.[9] During this more in-depth inspection, Mr. Turner concluded extensive water damage existed in the home.[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 problems. 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 moisture problems on the interior walls of the shed and there is always standing water in the shed requiring much of the framing to be re-built once the foundation is leveled and drainage problems eliminated.[11]
Bradley T. Dunn further intentionally and fraudulently concealed defects in the property by marking “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 mold and trapped moisture at the time of sale, which has resulted in “[h]igh levels of actively growing Stachybotrys.”[13]

         Finally, Plaintiffs allege Defendants “misrepresented . . . that the property had never had termites or other wood-destroying insects” despite Mr. Dunns' having contacted Envirotec Pest Control Services, LLC in 2016 “regarding termites within the [outside] shed.”[14]

         Based on these alleged redhibitory defects, Plaintiffs filed suit against Defendants on November 18, 2016 in the 24th Judicial District Court for the Parish of Jefferson, State of Louisiana, seeking to rescind the sale.[15] On December 13, 2016, Defendants removed the case pursuant to this Court's diversity subject matter jurisdiction.[16] Defendants now move for summary judgment.[17]


         Summary judgment is proper only “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”[18]“An issue is material if its resolution could affect the outcome of the action.”[19] When assessing whether a material factual dispute exists, the Court considers “all of the evidence in the record but refrain[s] from making credibility determinations or weighing the evidence.”[20] All reasonable inferences are drawn in favor of the non-moving party.[21]There is no genuine issue of material fact if, even viewing the evidence in the light most favorable to the non-moving party, no reasonable trier of fact could find for the non-moving party, thus entitling the moving party to judgment as a matter of law.[22]

         “[A] party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion[] and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact.”[23] If the dispositive issue is one on which the non-moving party will bear the burden of persuasion at trial, to satisfy Federal Rule of Civil Procedure 56's burden, the moving party must do one of two things: it “may submit affirmative evidence that negates an essential element of the nonmoving party's claim” or “demonstrate to the Court that the nonmoving party's evidence is insufficient to establish an essential element of the nonmoving party's claim.”[24] When the moving party chooses the latter option it:

must affirmatively show the absence of evidence in the record. This may require the moving party to depose the nonmoving party's witnesses or to establish the inadequacy of documentary evidence. If there is literally no evidence in the record, the moving party may demonstrate this by reviewing for the court the admissions, interrogatories, and other exchanges between the parties that are in the record.[25]

         If the moving party fails to carry this burden, the motion must be denied.

         If the moving party successfully carries its burden, the burden of production then shifts to the non-moving party to direct the Court's attention to something in the pleadings or other evidence in the record setting forth specific facts sufficient to establish that a genuine issue of material fact does indeed exist.[26] Thus, the non-moving party may defeat a motion for summary judgment by “calling the Court's attention to supporting evidence already in the record that was overlooked or ignored by the moving party.”[27] “[U]nsubstantiated assertions are not competent summary judgment evidence.”[28] Rather, “the party opposing summary judgment is required to identify specific evidence in the record and to articulate the precise manner in which that evidence supports his or her claim. ‘Rule 56 does not impose upon the district court a duty to sift through the record in search of evidence to support a party's opposition to summary judgment.'”[29]


         Generally, the seller of a home impliedly warrants to the buyer that the property is free from redhibitory vices or defects.[30] Louisiana Civil Code article 2520 defines a redhibitory defect as one that:

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.[31]

         A redhibitory defect must be latent and have existed at time of sale, as the implied warranty against redhibitory defects covers only hidden defects, not defects known to the buyer at the time of sale.[32] Even when a home is sold “as is, ” “it is well-settled under Louisiana law that a seller may not fail to disclose a defect or actively ...

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