Paul D. Moreau, Et Ux. v. Mary Morgan McKenzie

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

CA 11-197

PAUL D. MOREAU, ET UX.

VERSUS

MARY MORGAN MCKENZIE, ET AL.

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APPEAL FROM THE
NINTH JUDICIAL DISTRICT COURT
PARISH OF RAPIDES, NO. 233,273
HONORABLE GEORGE CLARENCE METOYER JR., DISTRICT JUDGE

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BILLY HOWARD EZELL
JUDGE

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Court composed of Elizabeth A. Pickett, Billy Howard Ezell, and Shannon J.
Gremillion, Judges.

AFFIRMED.

Fred Andrew Pharis
Pharis & Pharis
831 DeSoto Street
Alexandria, LA 71301
(318) 445-8266
Counsel for Plaintiffs/Appellants:
Paul D. Moreau
Anna Brasher Moreau

Rodney Marchive Rabalais
Rabalais & Roy
P. O. Box 447
Marksville, LA 71351
(318) 253-4622
Counsel for Defendants/Appellees:
Priscilla Morgan Goudeau
Mary Morgan McKenzie

Randall Brian Keiser
Keiser Law Firm
P.O. Box 12358
Alexandria, LA 71315-2394
(318) 443-6168
Counsel for Defendant/Appellee:
Continental Casualty Company

EZELL, JUDGE.

In this matter, Paul and Anna Moreau appeal the trial court’s ruling granting

Kelly Ducote’s motion for summary judgment and dismissing their claims against

her. For the following reasons, we affirm the decision of the trial court.

In April 2008, the Moreaus purchased a home in Alexandria, Louisiana from

Mary McKenzie and Priscilla Goudeau (the sellers). Ms. Ducote served as a real

estate agent for both parties. As part of the sale, Ms. Ducote and the sellers

presented the Moreaus with a property disclosure form which indicated that the

home’s roof leaked “and was replaced in 1998/99 [sic] all new decking & felt

replaced with 70 yr. clay tile.” The sellers attested on the document that the

information provided was correct. The Moreaus were advised twice by Ms.

Ducote in writing to secure a home inspection, which they did. The resulting

inspection placed the roof at an age of six to ten years, with a few problems of

“minor concern.” The Moreaus purchased the home despite these concerns. The

act of sale stated two separate times that the sale was “as is” and without warranty.

The sale further set forth that Ms. Ducote issued no warranty as to the home or its

condition.

After the sale was completed, the Moreaus sought to repair a few broken

roof tiles. At that time, they learned that the tiles on the roof had not been

manufactured for several decades, meaning the entire roof had not been ten years

old as they had previously thought. In fact, during the 1998-99 repairs, the ceramic

roof tiles were removed, the underlying deck and felt completely replaced, and the

seventy-year-old tiles laid back down. The Moreaus filed the current suit against

Ms. Ducote, her insurer, and the sellers for redhibition and damages. All

redhibition claims against Ms. Ducote were dismissed by a prior judgment on

exception, which has not been appealed. Ms. Ducote then filed a motion for
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summary judgment seeking the dismissal of the remaining claims against her,

arguing the Moreaus had presented no evidence to support their remaining claims

of fraud and negligent misrepresentation. The trial court agreed, granting Ms.

Ducote’s motion and dismissing the Moreaus’ claims. From this decision, the

Moreaus appeal.

The Moreaus assert one assignment of error, that the trial court erred in

dismissing their claims against Ms. Ducote and her insurer. We disagree.

Louisiana Code of Civil Procedure Article 966(B) provides that summary

judgment shall be granted where the pleadings, depositions, answers to

interrogatories, admissions on file and affidavits show that there is no genuine

issue of material fact and that the mover is entitled to judgment as a matter of law.

The Louisiana Supreme Court discussed the standard applicable to appellate

review of summary judgments in Robinson v. Heard, 01-1697, pp. 3-4 (La.

2/26/02), 809 So.2d 943, 945:

A reviewing court examines summary judgments de novo under
the same criteria that govern the district court’s consideration of
whether summary judgment is appropriate. Smith v. Our Lady of the
Lake Hospital, Inc., 93-2512 (La.7/5/94), 639 So.2d 730, 750. A
reviewing court thus asks the same questions as does the trial court in
determining whether summary judgment is appropriate: whether there
is any genuine issue of material fact, and whether the mover is entitled
to judgment as a matter of law. Smith, 639 So.2d at 750.

While the initial burden of proof is on the mover to show that no genuine

issue of material fact exists, if he will not bear the burden of proof at trial on the

issue that is presented by the motion for summary judgment, he is not required “to

negate all essential elements” of his opponent’s claim but need only point out “that

there is an absence of factual support for one or more elements essential” to his

opponent’s action. La.Code Civ.P. art. 966(C)(2). If the opponent “fails to

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produce factual support sufficient to establish that he will be able to satisfy his

evidentiary burden of proof at trial, there is no genuine issue of material fact.” Id.

In Waddles v. LaCour, 06-1245, p. 5 (La.App. 3 Cir. 2/7/07), 950 So.2d 937,

942, writs denied, 07-827, 07-882 (La. 6/22/07), 959 So.2d 496, 498 (citations

omitted)(quoting Osborne v. Ladner, 96-863, p. 16 (La.App. 1 Cir. 2/14/97), 691

So.2d 1245, 1257), this court discussed the duties of a real estate broker or agent:

A purchaser’s remedy against a real estate broker
is limited to damages for fraud under LSA-C.C. art. 1953
et seq. or for negligent misrepresentation under LSA-
C.C. art. 2315. The action for negligent
misrepresentation arises ex delicto, rather than from
contract. In order for a plaintiff to recover for negligent
misrepresentation, there must be a legal duty on the part
of the defendant to supply correct information, a breach
of that duty, and damage to the plaintiff caused by the
breach. A real estate broker or agent owes a specific
duty to communicate accurate information to the seller
and the purchaser and may be held liable for negligent
misrepresentation. However, the duty to disclose any
material defects extends only to those defects of which
the broker or agent is aware.

The record before this court contains no evidence whatsoever of any

negligent misrepresentation on the part of Ms. Ducote, let alone any actions that

rise to fraud. The Moreaus admit in their deposition testimony that they have no

witnesses, evidence, or factual basis for their belief that Ms. Ducote knew any of

the information she put on the disclosure form was false or misleading. The sellers

both testified that Ms. Ducote correctly put the information they told her on the

disclosure form. Moreover, that form included an attestation signed by the sellers

that the information contained therein was correct. The disclosure form was signed

or initialed by the sellers on every page. Ms. Ducote testified that she put the

information down directly as worded by the sellers. While this testimony is self-

serving, it is not disputed by the Moreaus. The Moreaus admit they have never

even spoken to the seller to determine any culpability on the part of Ms. Ducote.
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Further, when asked why she felt Ms. Ducote should have known the age of the

roof when the home inspector examining the house thought the roof was six to ten

years old, Mrs. Moreau stated that she “[didn’t] expect that [Ms. Ducote] would

have known,” as she was not an expert as to roofing.

The Moreaus have offered nothing into the record other than their own

speculative conjecture that Ms. Ducote breached her duty to them. The Moreaus

simply believe they were lied to, but offer no proof, and even admit they do not

know by whom. There is no genuine issue of material fact in the record before this

court, and the trial court was correct in its ruling that summary judgment was

appropriate in this matter.

For the above reasons, the ruling of the trial court is hereby affirmed. Costs

of this appeal are assessed against the Moreaus.

AFFIRMED.

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