Ten Ky v. Gob Construction, Inc.

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

13-1042

TEN KY

VERSUS

GOB CONSTRUCTION, INC., ET AL.

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF VERMILION, NO. 89939
HONORABLE DURWOOD WAYNE CONQUE, DISTRICT JUDGE

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JOHN D. SAUNDERS
JUDGE

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Court composed of Sylvia R. Cooks, John D. Saunders, and Elizabeth A. Pickett,
Judges.

AFFIRMED.

Ted L. Ayo
Attorney at Law
10 S. St. Charles St.
Abbeville, LA 70510-5108
(800) 880-1117
COUNSEL FOR DEFENDANT/APPELLEE:
James Noel d/b/a Sunrise Realty, Inc.

Carl M. Duhon
Ike Huval
Duhon Law Firm
P. O. Box 52566
Lafayette, LA 70505
(337) 237-9868
COUNSEL FOR PLAINTIFF/APPELLANT:
Ten Ky

Christopher Kent Ralston
Phelps Dunbar L.L.P.
365 Canal St., Suite 2000
New Orleans, LA 70130-6534
(504) 861-7528
COUNSEL FOR DEFENDANT/APPELLEE:
Stewart Title Guaranty Co.

SAUNDERS, Judge.

This case involves a homeowner who discovered that the home he purchased

was constructed in violation of the setback restrictions imposed by the city and

subdivision. The homeowner sued the insurance company that issued title

insurance on the sale and the realty company that acted as the listing and selling

agent.

The trial court granted both the insurance company and realty company’s

separate motions for summary judgment dismissing each from the suit. The

homeowner appeals, we affirm.

FACTS AND PROCEDURAL HISTORY:

On February 25, 2008, Ten Ky purchased a family home an accompanying

property in Abbeville, Louisiana. The home was constructed by G.O.B.

Construction, Inc. (G.O.B.). James A. Noel d/b/a Sunrise Realty, Inc. (Sunrise

Realty), acting through its employee/agent, served as Ky’s real estate agent in

connection with the purchase of the property. Stewart Title Guaranty Company

(Stewart Title) sold Ky a title insurance policy for the sale.

Towards the end of 2008, a neighbor advised Ky that his home encroached

upon the five-foot setback restrictions found in the Act of Dedication of North

Hills Subdivision, Phase II and the zoning laws promulgated by the City of

Abbeville. A survey performed indicated that the home encroaches on the five-

foot setback restriction by up to one foot on the front and by less than half a foot at

the rear.

Ky filed suit against G.O.B., Stewart Title, and Sunrise Realty seeking a

judgment ordering the defendants to take all action necessary to make the property

comply with all applicable zoning ordinances and subdivision covenants and

ordering the defendants to compensate Ky for his damages. G.O.B. did not answer

the suit nor has it participated in this litigation as it is no longer in business.

Stewart Title and Sunrise Realty answered the suit timely and asserted various

defenses.

Thereafter, the Abbeville City government enacted a resolution granting Ky

a variance from the setback restriction. It did so after verifying that Ky’s home did

not interfere with the restriction’s purpose, insuring that fire and safety vehicles

could pass between homes in the neighborhood in the case of an emergency.

Ky continued the litigation by seeking a summary judgment against Stewart

Title holding that the encroachments on the setback restrictions were covered risk

under the title insurance policy despite the resolution passed by the Abbeville City

government and despite no entity ever requesting Ky to comply with any setback

restrictions. The trial court denied this motion.

After the trial court denied Ky’s motion, his deposition was taken. In that

deposition, Ky affirmed that no entity ever requested him to bring his home into

compliance with any setback restrictions and that he had not suffered any damages

or loss due to the setback restrictions. Both Stewart Title and Sunrise Realty

moved for summary judgment seeking dismissal from the suit.. The trial court

granted both motions. Ky appeals, asserting two assignments of error.

ASSIGNMENTS OF ERROR:

I.

The Trial Court erred when it denied Mr. Ky’s Motion for
Summary Judgment and granted Steward Title Guaranty Company’s
Motion for Summary Judgment because the facts clearly show that the
Property is unmarketable and unmarketability is a covered risk under
paragraphs 4, 9 and 26 of the section of the policy entitled
“Coverage.”

II.

The Trial Court erred when it granted Mr. Noel’s Motion for
Summary Judgment because James A Noel (d/b/a Sunrise Realty, Inc.)
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is responsible for his agent’s failure to discover that [the] home
encroaches upon the setback restrictions and to advise Mr. Ky of the
encroachments.

ASSIGNMENT OF ERROR NUMBER ONE:

Ky asserts that the trial court erred when it denied his motion for summary

judgment and granted Steward Title Company’s motion for summary judgment

because the facts clearly show that his property is unmarketable and

unmarketability is a covered risk under the policy. We disagree.

Summary judgments are reviewed de novo. Thibodeaux v. Lafayette Gen.

Surgical Hosp., 09-1523 (La.App. 3 Cir. 5/5/10), 38 So.3d 544. Summary

judgment “is designed to secure the just, speedy, and inexpensive determination of

every action.” La.Code Civ.P. art. 966(A)(2). “The procedure is favored and shall

be construed to accomplish these ends.” Id. A motion for summary judgment

“shall be rendered forthwith if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, show

that there is no genuine issue as to material fact, and that mover is entitled to

judgment as a matter of law.” La.Code Civ.P. art. 966(B).

The burden of proof remains with the movant. However, if the movant
will not bear the burden of proof at trial on the matter that is before
the court on the motion for summary judgment, the movant’s burden
on the motion does not require him to negate all essential elements of
the adverse party’s claim, action, or defense, but rather to point out to
the court that there is an absence of factual support for one or more
elements essential to the adverse party’s claim, action, or defense.
Thereafter, if the adverse party fails to 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.

La.Code Civ.P. art. 966(C)(2).

Stewart Title raises the question of whether Ky can properly appeal the trial

court’s denial of his motion for summary judgment. We do not address this issue

as it is unnecessary to adjudicate this matter.

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The policy at issue insures Ky against “actual loss.” Stewart Title points out

that there is no evidence that Ky sustained an actual loss. Given that this is an

essential element of Ky’s claim, Ky must show that he can carry his burden to

prove at trial that he sustained an actual loss.

After a thorough review of the record, we find that Ky has failed to show

that he can carry his burden to prove an actual loss at trial. The record is devoid of

any evidence that he suffered an actual loss. Ky testified in his deposition that he

hasn’t suffered any loss at this time, but his fear is that he will suffer a loss in the

future. This fear is not evidence of an actual loss. Accordingly, we find no merit

to assignment of error number one.

ASSIGNMENT OF ERROR NUMBER TWO:

Ky contends that the trial court erred when it granted Sunrise Realty’s

motion for summary judgment because an agent with Sunrise Realty failed to

discover that Ky’s home encroaches upon the setback restrictions and to advise Ky

of those encroachments. We find no error by the trial court.

The standard of review is again de novo, as this assignment of error deals

with the propriety of a summary judgment. Thibodeaux, 38 So.3d 544.

At trial, Ky has the burden to prove that Sunrise Realty caused damage to

him through violating a duty that it owed to him. After reviewing the record, we

find that Ky cannot carry his burden to prove that he suffered any damages

regardless of whether Sunrise Realty had any duty to inform him of the setback

restrictions. Ky alleges that his property’s value is decreased by the home’s

violation of the setback restrictions and that these are damages that he has

sustained. We find no evidence supporting Ky’s allegation in the record.

Contrarily, the only expert evidence in the record indicates that the value of Ky’s

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property is unchanged by the setback restrictions. Accordingly, we do not find

merit to Ky’s second assignment of error.

CONCLUSION:

Ten Ky raised two assignments of error asserting that the trial court erred in

granting motions for summary judgment dismissing Stewart Title Guaranty

Company and James A. Noel d/b/a Sunrise Realty, Inc. as defendants in Ky’s suit.

We find no evidence in the record that Ky suffered an actual loss, a necessity for

coverage under the plain language of Steward Title’s policy. Further, we find no

evidence of any damages suffered by Ky, a necessity for his claim against Sunrise

Realty. Thus, we find no error by the trial court in granting either motion. All

costs of these proceedings are assessed to Ten Ky.

AFFIRMED.

This opinion is NOT DESIGNATED FOR PUBLICATION. Uniform

Rules-Courts of Appeal, Rule 2-16.3.

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