Reese S. Martin v. Steve Delia & Associates, Ltd.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

15-721

REESE S. MARTIN

VERSUS

STEVE DELIA & ASSOCIATES, LTD., ET AL.

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APPEAL FROM THE
THIRTIETH JUDICIAL DISTRICT COURT
PARISH OF VERNON, NO. 88,495, DIV A
HONORABLE VERNON B. CLARK, DISTRICT JUDGE

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JIMMIE C. PETERS
JUDGE

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Court composed of John D. Saunders, Jimmie C. Peters, and Phyllis M. Keaty,
Judges.

AFFIRMED.

Mitchel M. Evans, II
416 North Pine Street
DeRidder, LA 70634
(337) 462-5225
COUNSEL FOR PLAINTIFF/APPELLANT:
Reese S. Martin

Elvin C. Fontenot, Jr.
110 East Texas Street
Leesville, LA 71446
(337) 239-2684
COUNSEL FOR DEFENDANTS/APPELLEES:
Raymond C. DesJardins
Joanna DesJardins

Emmett C. Sole
H. Alan McCall
Ross M. Raley
Stockwell, Sievert, Viccellio, Clements & Shaddock, L.L.P.
One Lakeside Plaza, Fourth Floor
Lake Charles, LA 70601
(337) 436-9491
COUNSEL FOR DEFENDANTS/APPELLEES:
Steve Delia & Associates, Ltd.
Steven F. Delia

PETERS, J.

The plaintiff, Reese S. Martin, appeals a trial court judgment granting

separate summary judgments of the defendants, Steve Delia & Associates, Ltd. and

Steven F. Delia, and Raymond and Joanna DesJardins; and dismissing his claims

against the defendants. For the following reasons, we affirm the trial judgment in

all respects.

DISCUSSION OF THE RECORD

On July 31, 2012, Mr. Martin purchased a city lot with improvements in

Rosepine, Louisiana, from Raymond and Joanna DesJardins. Steven F. Delia is

the owner of Steve Delia & Associates, Ltd., the real estate agency handling the

sale. On August 28, 2013, Mr. Martin filed an action to rescind the sale and named

the DesJardins, Mr. Delia, and his agency as defendants. The basis of Mr. Martin‟s

suit was that the former owners and Mr. Delia failed to disclose defects in the

property.

The matter is now before us because the trial court granted motions for

summary judgment filed by Mr. Delia and his agency on July 9, 2014, and by the

DesJardins on July 30, 2014. The trial court issued oral reasons for granting the

defendants‟ relief in an October 6, 2014 hearing on the motions. On November 13,

2014, the trial court executed a judgment dismissing Mr. Martin‟s suit against the

defendants, and thereafter, he perfected this appeal. His sole assignment of error

asserts the following:

The trial court erred as a matter of law and fact in granting
Defendant‟s [sic] Motion For Summary Judgment as to all claims and
all Defendants, when the only evidence/affidavits/pleadings presented
by Defendants solely addressed one of MARTIN‟s claims that his
home was rendered uninhabitable as a result of either rainwater and/or
sewerage intrusion.

OPINION

Although La.Code Civ.P. art. 966 has undergone significant changes in the

past three years, certain procedural aspects of summary judgment issues remain the

same. For example, the standard of review by this court remains well settled.

“Appellate review of the granting of a motion for summary judgment is de novo,

using the identical criteria that govern the trial court‟s consideration of whether

summary judgment is appropriate.” Smitko v. Gulf S. Shrimp, Inc., 11-2566, p. 7

(La. 7/2/12), 94 So.3d 750, 755. Additionally, the summary judgment procedure

has retained its statutorily mandated “favored” status and retains as its purpose “to

secure the just, speedy, and inexpensive determination of every action, except

those disallowed by Article 969.” La.Code Civ.P. art. 966(A)(2). With regard to

the type of evidence the trial court may consider, and the burden to be met,

La.Code Civ.P. art. 966(B)(2) provides in pertinent part:

The judgment sought shall be rendered forthwith if the
pleadings, depositions, answers to interrogatories, and admissions,
together with the affidavits, if any, admitted for purposes of the
motion for summary judgment, show that there is no genuine issue as
to material fact, and that mover is entitled to judgment as a matter of
law.

With regard to the burden of proof, La.Code Civ.P. art. 966(C)(2) provides:

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.

In his petition, Mr. Martin asserted that after purchasing the property, he and

his three children moved into the residence situated thereon; and shortly thereafter,

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everyone began experiencing respiratory problems. Mr. Martin further asserted in

his petition that an investigation into the cause of the respiratory problems led to

the discovery of mold on several surfaces in the home. He claims that he then

retained Air Marshalls Environmental Consultants (Air Marshalls), an accredited

mold-inspection organization, to inspect the home. The subsequent report

prepared by Air Marshalls, according to Mr. Martin‟s pleadings, revealed an

unacceptably high humidity and moisture content within the home as well as high

or moderately high levels of surface mold.

According to his pleadings, after he received Air Marshalls‟ investigative

report on June 19, 2013, Mr. Martin and his children vacated the property.

Thereafter, he discovered from further investigation that the home had a history of

flooding problems, both from rainwater and sewerage backups into the home. Mr.

Martin asserts that all of the defendants had knowledge of these defects in the

property and failed to disclose them to him prior to the purchase. Mr. Martin

attached the following exhibits to his original petition:

Documents from the Vernon Parish Clerk of Court‟s office containing
recording information of a mortgage on the property executed by Mr.
Martin, as well as a copy of the mortgage itself;

Copy of the Air Marshalls Environmental Consultants report;

Affidavit of David Gibson;

Copy of a November 17, 2007 letter from JoAnna DesJardins to the
Village of Rosepine, with attachments reflecting a settlement from the
Village of Rosepine for $2,145.25;

Document entitled “INFORMATIONAL STATEMENT FOR
LOUISIANA RESIDENTIAL PROPERTY DISCLOSURE”
relative to a parcel different from the one at issue in this litigation;

Cost of the real estate listing agreement between Mr. Delia‟s agency
and the DesJardins;

Copy of demand letter from Mr. Martin‟s attorney to the DesJardins;

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Copy of a July 22, 2013, damage estimate from Bruce C. Martin
Construction to Mr. Martin in the amount of $19,500.00;

Documents from the Vernon Parish Clerk of Court‟s office containing
recording information of the transfer of the immovable property from
the DesJardins to Mr. Martin, as well as a copy of the cash deed itself;
and

Copy of a June 20, 2013 letter from Armed Forces Insurance, with an
insurance policy attached, to Mr. Martin‟s attorney denying coverage
for the mold infestation.

In their motion for summary judgment, Mr. Delia and his agency asserted

that Mr. Delia provided Mr. Martin with all the information he had concerning the

property, including any prior sewage problems and the potential for flooding. In

the alternative, they asserted that Mr. Martin could not establish that the mold was

caused by flooding or sewer problems, and that his claim had prescribed. Mr.

Delia and his agency attached the following exhibits to their summary judgment

motion:

Affidavit of Steven F. Delia, with attachments;

Affidavit of Monya Gott, with attachments; and

Excerpts from Mr. Martin‟s deposition.

In their motion for summary judgment, Mr. and Mrs. DesJardins asserted

that they had no direct communication with Mr. Martin before the sale and that

they disclosed all of the information they possessed concerning the property to Mr.

Delia. Additionally, they assert that the transfer of the immovable property was an

“as is” sale; that Mr. Martin could not establish that the mold was caused from the

flooding events; and that Mr. Martin‟s claim has prescribed. The DesJardins

attached the following exhibits to their motion for summary judgment:

Affidavit of Steven F. Delia, with attachments;

Affidavit of Monya Gott, with attachments;

Excerpts from Mr. Martin‟s deposition;
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Affidavit of James R. Lestage; and

Cash sale deed between the DesJardins, as seller, and Mr. Martin, as
purchaser.

Mr. Martin filed a brief in opposition to the summary judgment motions, but

attached no exhibits. At the trial on the motions, the defendants‟ exhibits were

introduced into evidence without objection. When Mr. Martin attempted to

introduce all of the attachments to his petition into evidence, counsel for Mr. Delia

and his agency objected on the ground that only the affidavit of Mr. Gibson met

the requirements for evidence in a summary judgment proceeding. The trial court

agreed and rejected the filing of all of the attachments except Mr. Gibson‟s

affidavit. 1 However, upon further review, the trial court rejected Mr. Gibson‟s

affidavit for the reason that its content reflected no firsthand knowledge that the

subject property actually flooded several times while the DesJardins resided

therein.2

The cash sale deed transferring the property from the DesJardins to Mr.

Martin contains the following limiting language:

The property is sold in “AS IS” condition without in any way
limiting the exclusion of warranties hereinabove set forth, and as
material and integral consideration for the execution of this act of sale
by Seller, Purchaser specifically and forever waives and releases
Seller from any and all claims and/or causes of action which
Purchaser(s) have, may have or hereafter may be otherwise entitled to
based on the vices of the thing sold, whether in the nature of
redhibition, quanti minoris or concealment or based on any other
theory of law, the Purchaser assuming the risk as to all defects,
including latent defects not discoverable upon simple inspection, and
including those knowledge of which would deter the Purchaser from

1
On appeal, Mr. Martin argues that it was error for the trial court to reject the report
prepared by Air Marshalls because it was a document prepared in the regularly conducted
business activity of Air Marshalls and not hearsay. However, because Mr. Martin did not object
at trial, he, thereby, failed to preserve that issue for consideration on appeal. See Uniform Rules-
Court of Appeal, Rule 2-12.4(A)(9)(C).
2
Mr. Gibson could only assert in his affidavit that he had conversations with Mr.
DesJardins concerning the flooding and that he observed carpet rolled up and left at the curb for
pickup by the City of Rosepine on occasions after heavy rains.
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making the purchase at all or paying the price paid. Purchaser also
acknowledges that Purchaser has inspected or caused to be inspected
any and all improvements located on the property sold and that
Purchaser is entirely satisfied with the conditions of said
improvements.

The remaining evidence considered by the trial court established that the real

estate agency managed the subject property as a rental for the DesJardins

beginning in May of 2009 and leased the property to Roman and Chereke

Henderson between August 3, 2009, and August 31, 2010. In his affidavit, Mr.

Delia acknowledged that a sewer line blockage affecting the property occurred in

early August of 2009, and when he contacted the DesJardins, he was told that it

had backed up one time before. The August 2009 problem was resolved when the

City of Rosepine removed a blockage from a city main sewer line, and A Plus

Plumbing installed a backwater check valve on the property on August 8, 2009.

Mr. Delia also was aware that the City of Rosepine‟s main sewer had backed up

again in 2011, but he had no information to suggest that the incident caused a

backup into the subject property on that occasion. He was also aware that the

DesJardins had previously constructed a structure along the back of the home to

prevent rainwater from reaching the rear door, but was not aware that any

rainwater had reached the inside of the house. In his affidavit, Mr. Delia also

asserted that he pointed out the backyard rainwater control structure and disclosed

the prior sewer problems to Mr. Martin prior to the sale. Mr. Delia professed to

have no knowledge of the existence of mold in the house at any time.

Monya Gott was identified in her affidavit as an employee of Mr. Delia‟s

agency, who worked on the sale of the property to Mr. Martin. In her affidavit, she

pointed out that the property listing “specifically disclosed the „cement berm in

back was placed to direct run off water from across the back porch.‟” She further

asserted that prior to the consummation of the sale, she was present at a meeting
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between Mr. Delia and Mr. Martin, wherein Mr. Delia specifically informed Mr.

Martin of the prior sewer backup and overflow problems, as well as the corrective

measures that had been taken. She also asserted that she was unaware of any mold

problems within the property.

In his deposition testimony, Mr. Martin testified that he toured the house

three to four times before the purchase, and saw the structure in the back yard used

to divert the rainwater. He further acknowledged that Mr. Delia told him of the

sewer problems and showed him the receipts from the City of Rosepine reflecting

the amounts paid to prevent future backups and to clean the house. He also

acknowledged that Mr. Delia told him that the purpose of the concrete structure in

the back yard was to stop some water intrusion issues. Mr. Martin further

acknowledged that he read the “as is” clause in the cash sale deed and asked no

questions concerning its meaning. In his affidavit, Mr. Martin acknowledged that

he never talked to the DesJardins concerning the property, and that all of his

communication was through the agency.

James R. Lestage asserted, in his affidavit, that he practices law in

Beauregard Parish and that he was the closing attorney in the sale of the

immovable property from the DesJardins to Mr. Martin. He further asserted that

he went over the contents of the closing documents with Mr. Martin and advised

him of the “as is” language. According to Mr. Lestage, Mr. Martin responded that

he clearly understood the clause and “understood that he was waiving any rights of

redhibition he may have had to the extent allowable by law.”

In its oral reasons for judgment, the trial court found no dispute over the fact

that Mr. Delia provided Mr. Martin with a complete history of the flooding

problems with the property. In summarizing its reasons for judgment, the trial

court stated the following:
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Quite frankly, this being an “as is” home all of the, the obligations of
the buyer to disclose fully these things, all of the obligations to
warrant any of the imperfections of the home that would make it
unlivable are waived. So, simply on that I think the summary
judgment is good. But, I think, further, beyond that the affidavits
establish that the realtor and the buyers disclosed to Mr. Martin what
they were able to disclose that would have alerted a reasonable person
to the fact that there are some issues with this house that I need to
investigate further and Mr. Martin admitted I knew these things before
I bought it. I was aware there – there‟s – there was sewer back up. I
was aware that there was a problem with water coming up to the – to
the home and, and after some shrubs were taken out and it changed
the, the layout of the backyard and that this berm was built for the
reason of doing something about this water during heavy rains. If
that‟s not enough notice, then I don‟t know what is, quite frankly,
Counsel. So, I think that the evidence supports the fact that this
plaintiff would not be able to prevail. There are no genuine issues of
material fact and that as to the realtor and as to the buy – [sic] – the
sellers in this case the Motions for Summary Judgment are granted.

Based on our de novo review of the record, we find no error in the trial

court‟s conclusion that no genuine issues of material fact exist in this matter and

that the defendants are entitled to relief as a matter of law. That being the case, we

find no merit in Mr. Martin‟s assignment of error.

DISPOSITION

For the foregoing reasons, we affirm the trial court‟s judgment granting

summary judgment in favor of Steven F. Delia, Steve Delia & Associates, Ltd.,

and Raymond and Joanna DesJardins, and dismissing the claims of Reese S.

Martin against these defendants. We assess all costs of this appeal to Reese S.

Martin.

AFFIRMED.

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