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Pierce v. Rodriguez

Court of Appeals of Louisiana, Third Circuit

April 17, 2019

SHANE R. PIERCE AND KIMBERLY M. PIERCE
v.
IRMA M. RODRIGUEZ, ET AL.

          SUPERVISORY WRIT FROM THE NINTH JUDICIAL DISTRICT COURT PARISH OF RAPIDES, NO. 251, 406 HONORABLE PATRICIA EVANS KOCH, DISTRICT JUDGE

          Fred A. Pharis Pharis Law Offices COUNSEL FOR PLAINTIFFS/RESPONDENTS: Shane R. Pierce Kimberly M. Pierce.

          Michael E. Parker Allen & Gooch COUNSEL FOR DEFENDANTS/APPLICANTS: RLI Insurance Company Ballard CLC, Inc. James Bryan Butler

          Randall Brian Keiser Keiser Law Firm, PLC COUNSEL FOR DEFENDANT/RESPONDENT: Irma M. Rodriguez

          Court composed of John D. Saunders, Billy H. Ezell, and Jonathan W. Perry, Judges.

          JOHN D. SAUNDERS, JUDGE

         Relators, Ballard, CLC, Inc. (Ballard); James Bryan Butler (Butler); and Ballard's insurer, RLI Insurance Company (RLI), seek writs from the denials of two motions for summary judgment in a ruling rendered by the Ninth Judicial District Court, Parish of Rapides, the Honorable Patricia Evans Koch, presiding.

         STATEMENT OF THE CASE

         Irma M. Rodriguez (Rodriguez) sold a home located at 109 Belle Trace, Lecompte, Louisiana, to Shane and Kimberly D. Pierce (the Pierces). The sale was "as is" without warranties.

         On October 1, 2013, a VA appraisal was conducted, and the appraiser noted masonry cracks and recommended an engineer's report. Rodriguez hired Ballard, and an inspection was performed by Butler, an engineer, whose October 8, 2013 report found the house to be "structurally sound."

         After being made aware of the VA appraisal's results, Shane called their lender, Public Service Mortgage (PSM), and indicated that they did not wish to purchase the house because of possible foundation problems. The Pierces were allegedly told that they might be subject to penalties and litigation if they backed out of the sale. The sale went through and closed on October 29, 2013.

         The Pierces allege that the failure of the foundation caused a build-up of methane gas from the sewer[1] that made the home uninhabitable by January of 2014. They allege that because they could not pay the mortgage due to having to pay rent on another place to live, the loan was placed in default. The home was seized and sold.

         The Pierces filed suit against Rodriguez, Ballard, Butler, and PSM, [2] alleging that Rodriguez knew and intentionally chose not to disclose that there were latent defects in the foundation and the sewer, as well as numerous other problems, that existed at the time of sale. Rodriguez filed a motion for summary judgment seeking the dismissal of the Pierces' claims. The motion was denied by the trial court, and this court denied her writ application. Pierce v. Rodriguez, 17-680 (La.App. 3 Cir. 3/14/18) (unpublished writ decision), writ denied, 18-587 (La. 6/1/18), 244 So.3d 436.

         Rodriguez filed a third-party demand against Allstate, her homeowner's insurer. Allstate filed a motion for summary judgment alleging that the policy issued to Rodriguez did not provide coverage for a redhibition claim. That motion was denied, and Allstate sought writs. This court granted writs and rendered judgment in favor of Allstate, dismissing both Rodriguez's third-party demand and the Pierces' claim against Allstate. Pierce v. Rodriguez, 17-681 (La.App. 3 Cir. 718/18) (unpublished opinion).

         Relators filed motions for summary judgment seeking dismissal of the Pierces' claims of detrimental reliance on Butler's report and their claims for loss of consortium. Rodriguez adopted "by reference" the motion for summary judgment filed by Relators. It is unclear whether she intended to adopt both motions, and she has ...


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