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Green v. Lowes Home Center LLC

United States District Court, W.D. Louisiana, Lake Charles Division

March 27, 2019





         Before the court is a Motion for Summary Judgment [doc. 58] filed by defendant Lowes Home Centers, LLC ("Lowe's"), asserting that all claims against it should be dismissed as prescribed. Plaintiffs Elmo and Sarah Green oppose the motion and Lowe's has filed a reply memorandum. Docs. 63, 67. Accordingly, the matter is now ripe for review, I.


         This action arises from the allegedly defective replacement of plaintiffs' roof by former defendant Southeast Roofing & Construction, Inc. ("Southeast"). Plaintiff Sarah Green entered into a contract with Lowe's for the roof replacement on March 16, 2015. Doc. 63, att. 5. Lowe's subcontracted the job to Southeast, and this court has determined that Southeast completed the work on or before April 8, 2015. Doc. 38, att. 3 (affidavit and exhibits from Southeast president); doc. 51, pp. 7-8; report and recommendation adopted, doc. 52. Plaintiffs claim that they learned of the alleged defective condition of the new roof when it began to leak in a hard rain, which the court has determined occurred on or before April 10, 2015. Doc. 38, att. 4, p. 3; doc. 38 att. 5, p. 3; see doc, 51, p. 8.

         Plaintiffs filed suit against Lowe's and Southeast in the Fourteenth Judicial District Court, Calcasieu Parish, Louisiana, on April 15, 2016. Doc. 1, att, 1, pp. 5-8. They allege that both parties are liable for negligently installing the roof, resulting in flooding to the Greens' home that led to growth of toxic mold and extensive property damage. Id. Southeast removed the matter to this court on the basis of diversity jurisdiction, 28 U.S.C. § 1332. Doc. 1. It then moved for summary judgment, alleging that plaintiffs' claims against it had prescribed under Louisiana's prescriptive period for tort claims. Doc. 38, att. 1. Plaintiffs opposed the motion, alleging that there were genuine issues of material fact as to (1) when they became aware of the damage, starting the clock on any delictual action, and (2) whether they had a contract with Southeast, which could place their claims under the ten-year prescriptive period for breach of contract. Doc. 45. The court found no merit to either argument and dismissed all claims against Southeast. Docs. 51, 52.

         Lowe's now moves for summary judgment, asserting that (1) although a contract between the parties exists, plaintiffs' claims must be construed as arising strictly in tort and (2) plaintiffs' claims against it have likewise prescribed under the one-year prescriptive period. Doc. 58, att. 1. Plaintiffs oppose the motion, arguing that their claims must be construed as arising from the contract and are therefore subject to a ten-year prescriptive period.


         Summary Judgment Standard

         A court should grant a motion for summary judgment when 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." Fed.R.Civ.P. 56. The party moving for summary judgment is initially responsible for identifying portions of pleadings and discovery that show the lack of a genuine issue of material fact. Tubacex, Inc. v. M/VRisan, 45 F.3d 951, 954 (5th Cir. 1995). The court must deny the motion for summary judgment if the movant fails to meet this burden. Id.

         If the movant makes this showing, however, the burden then shifts to the non-moving party to "set forth specific facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 417 U.S. 242, 248 (1986) (quotations omitted). This requires more than mere allegations or denials of the adverse party's pleadings. Instead, the nonmovant must submit "significant probative evidence" in support of his claim. State Farm Life Ins. Co. v. Gutterman, 896 F.2d 116, 118 (5th Cir. 1990). "If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson, 477 U.S. at 249 (citations omitted).

         A court may not make credibility determinations or weigh the evidence in ruling on a motion for summary judgment. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000). The court is also required to view all evidence in the light most favorable to the non-moving party and draw all reasonable inferences in that party's favor. Clift v. Clift, 210 F.3d 268, 270 (5th Cir. 2000). Under this standard, a genuine issue of material fact exists if a reasonable trier of fact could render a verdict for the nonmoving party. Brumfield v. Rollins, 551 F.3d 322, 326 (5th Cir. 2008).



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