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Novak v. ST. Maxent-Wimberly House Condominium Inc.

United States District Court, E.D. Louisiana

June 26, 2018

TODD NOVAK
v.
ST. MAXENT-WIMBERLY HOUSE CONDOMINIUM, INC., ET AL.

         SECTION: “J” (3)

          ORDER AND REASONS

          CARL J. BARBIER UNITED STATES DISTRICT JUDGE.

         Before the Court are the Defendants', Martin Robinson's and Robinson Realty LLC's, Motion for Summary Judgment (Rec. Doc. 126), Motion to Strike Unsworn Declaration of Malcom M. Kelso (Rec. Doc. 131) and Motion to Reset Hearing (Rec. Doc. 173). Parties have had the opportunity to file their opposition and replies and have done so. Having considered the motion and legal memoranda, the record, and the applicable law, the Court finds that the Movants' Motion for Summary Judgment should be GRANTED. Therefore, the Motion to Strike and the Motion to Reset Hearing are DISMISSED AS MOOT.

         FACTS AND PROCEDURAL BACKGROUND

         This litigation derives from a dispute over the right to lease a condominium the Plaintiffs purchased from Michael and Jenny Tilbury. The Plaintiffs are school teachers residing in California who hoped to buy a French Quarter condo that they could use as a vacation home during summer break, but lease during the regular school year when they would be out-of-state. The Plaintiffs hired the Movants, Martin Robinson and Robinson Realty, LLC, to act as their real estate agent in making this purchase. Plaintiffs successfully purchased a condo property with the help of the Movants, but their plan to lease the condo was thwarted when the condo's board of directors informed them that the minimum lease length had been extended from six months to one year.

         Plaintiffs subsequently filed suit against the condo's board, the board members in their individual capacities, the sellers, the sellers' real estate agent, the insurance companies, and importantly here, their own real estate agent, and real estate agent company, the Movants. Against the Movants, Plaintiffs allege only two (of their total seventeen) causes of action listed in their second amended complaint (Rec. Doc. 53): (1) Movants were negligent for failing to inform Plaintiffs of “the affairs” at the condo complex and its “latent defects” and for failure to ascertain “proper documentation” existed and also (2) Movants participated in a civil conspiracy perpetrated against Plaintiffs by the condo board, sellers' real estate agents, and sellers.

         The Movants then filed their Motion for Summary Judgment (Rec. Doc. 126). Plaintiffs responded with opposition (Rec Doc. 128), which cited the unsworn declaration of Malcom M. Kelso (Rec. Doc. 128-3), as the basis for its claims against Movants. Movants responded with their Motion to Strike Unsworn Declaration of Malcolm M. Kelso (Rec. Doc. 131). Plaintiffs filed their opposition to that motion as well (Rec. Doc. 155). Plaintiffs also filed a reply (Rec. Doc. 176) to Plaintiffs' opposition to their Motion for Summary Judgment.

         PARTIES' ARGUMENTS

         Movants argue that they are entitled to summary judgment as to both Plaintiffs' negligence and civil conspiracy claims. Movants argue that the negligence claim must fail because Plaintiffs (1) could not identify any documents that Movants failed to obtain on their behalf and (2) conceded they had no factual basis to believe that Movants possessed or withheld knowledge of any defects or managerial affairs from them (Rec. Docs. 124-4, 124-5). In a typical exchange Plaintiff Todd Novak admits the following:

Q. And then No. 20, no, I'm sorry. No. 200. The allegation is, Robinson Realty and Robinson had knowledge regarding the affairs at St. Maxent, and they did not disclose the same to the Novaks.
A. I don't know what Martin Robinson knew about the affairs of St. Maxent.
Q. And you also circled No. 201. The allegation is, Robinson Realty and Robinson had knowledge regarding the latent defects in the property, and they did not disclose the same to the Novaks.
A. I don't know what Martin Robinson and Robinson Realty were aware of.

         Plaintiffs have filed in opposition to Movants' claim that no factual basis exists for the negligence, but that memorandum is mostly a regurgitation of Plaintiffs' memorandum in opposition (Rec. Doc. 129) to the Tilbury's motion for partial summary judgment (Rec. Doc. 119). In opposition, Plaintiffs complain the depositions were confusing and again allege a duty to turn over certain documents imposed by La. R.S. § 9:1124.107. They also argue Movants had “constructive knowledge” of defects and managerial affairs at the condominium ...


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