Shane R. Pierce and Kimberly M. Pierce v. Irma M. Rodriguez

• Court: Louisiana Court of Appeal
• Decided: April 17, 2019
• Docket: CW-0019-0181
• Status: Unknown

Opinion

STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

19-181

SHANE R. PIERCE AND KIMBERLY M. PIERCE

VERSUS

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

JOHN D. SAUNDERS JUDGE

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

WRIT DENIED.

Fred A. Pharis Pharis Law Offices 831 DeSoto Street Alexandria, LA 71301 (318) 445-8266 COUNSEL FOR PLAINTIFFS/RESPONDENTS: Shane R. Pierce Kimberly M. Pierce Michael E. Parker Allen & Gooch P. O. Box 81129 Lafayette, LA 70598-1129 (337) 291-1350 COUNSEL FOR DEFENDANTS/APPLICANTS: RLI Insurance Company Ballard CLC, Inc. James Bryan Butler

Randall Brian Keiser Keiser Law Firm, PLC P. O. Box 12358 Alexandria, LA 71315 (318) 443-6168 COUNSEL FOR DEFENDANT/RESPONDENT: Irma M. Rodriguez 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 sewer1 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.

1 Rodriquez alleges that she had the Rapides Parish Sanitarian and Mike Nugent, a sewer system installer and repairman, perform inspections of the sewer system and that the sewer passed inspection. 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 not filed anything in this court in connection with the instant writ application.

The two motions were denied in open court on February 4, 2019. One

judgment was signed on February 12, 2019. Relators timely filed a notice of intent

to seek writs and requested a return date. The trial court did not set a certain date,

2 RLI was added as a defendant in the first supplemental petition. State Farm, as the insurer of PSM, and Allstate, as the insurer of Rodriguez, were added as defendants in the second supplemental petition. PSM and State Farm settled with the Pierces and are no longer involved in this litigation.

2 but this writ application was timely filed on February 28, 2019. La.Code Civ.P. art.

1914 and Uniform Rules―Courts of Appeal, Rule 4‒3. The Pierces filed an

opposition to the writ application.

SUPERVISORY RELIEF

“A denial of a motion for summary judgment is interlocutory, and the only

remedy available is to seek supervisory relief.” Lewis v. Old Republic Ins. Co., 17-

456, p. 2 (La.App. 3 Cir. 8/23/17), 226 So.3d 557, 558.

ON THE MERITS

“A reviewing court considers a trial court’s judgment on a motion for

summary judgment pursuant to the de novo standard.” Schroeder v. Hanover Ins.

Co., 18-294, p. 3 (La.App. 3 Cir. 9/19/18), 255 So.3d 1123, 1125.

In support of both motions for summary judgment, Relators submitted the

original petition for damages and the transcript of Kimberly’s deposition taken on

March 28, 2017, which is titled “Continuation of Deposition.” In a supplemental

memorandum, Relators refer to and quote Shane’s deposition but do not attach the

transcript.

The Pierces’ brief in opposition to several motions filed by various parties,

including the two motions for summary judgment at issue in this writ application,

refers to three exhibits relating to the Pierces’ credit expert and to Kimberly’s

deposition. The copy of this brief attached to the writ application does not include

the referenced exhibits.3

The court minutes do not reflect that any documents were received into

evidence. The Pierces attach portions of the transcript of Kimberly’s deposition

taken on April 26, 2016, to their opposition to the writ application. This exhibit is

3 This is a violation of Uniform Rules―Courts of Appeal, Rule 4‒5(C)(9), but the three exhibits relating to the credit expert are not relevant to this writ application, and Kimberly’s deposition transcript is attached to the motion for summary judgment. 3 not properly before this court because it was not placed into the record at the trial

court. Denoux v. Vessel Mgmt. Serv., Inc., 07-2143 (La. 5/21/08), 983 So.2d 84;

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

The documents submitted by the mover must be “sufficient to resolve all

material factual issues.” Gilbert v. Gottsegen, 14-593, p. 8 (La.App. 5 Cir. 5/21/15),

171 So.3d 289, 294, writ denied, 15-1406 (La. 10/2/15), 178 So.3d 993. “‘[F]actual

inferences reasonably drawn from the evidence must be construed in favor of the

party opposing the motion, and all doubt must be resolved in the opponent’s favor.’”

Bowdoin v. WHC Maint. Serv., Inc., 17-150, pp. 4-5 (La.App. 3 Cir. 10/25/17), 230

So.3d 232, 236, quoting Willis v. Medders, 00-2507 (La. 12/8/00), 775 So.2d 1049,

1050. Thus, “even when no opposition is filed to a motion for summary judgment,

the court must still determine whether the movant has met its burden of proof on the

motion.” Rangel v. Vega-Ortiz, 16-146, p. 3 (La.App. 3 Cir. 9/28/16), 200 So.3d

1013, 1016.

For the reasons that follow, we find that Relators have not submitted evidence

that resolves all issues of material fact regarding the issues raised in the motions for

summary judgment.

Detrimental Reliance

“To establish detrimental reliance, a party must prove three elements by a

preponderance of the evidence: (1) a representation by conduct or word; (2)

justifiable reliance; and (3) a change in position to one’s detriment because of the

reliance.” Louisiana Office of Risk Mgmt. v. Richard, 13-890, p. 5 (La. 10/15/13),

125 So.3d 398, 402.

In the petition, the Pierces claim that Relators falsely assured them “that there

were no problems with the home and that the home was foundationally and

4 structurally sound.” They also allege Butler’s “materially false and negligent

report . . . induced them to buy the home which was uninhabitable.”

Relators assert that the Pierces’ claim for detrimental reliance fails because

they made up their minds not to purchase the house before Butler issued his report

and thereafter went through with the sale without having seen Butler’s report.

Relators assert that the decision to go through with the sale was based on threats

made by PSM and not on Butler’s report.

Kimberly testified in deposition that after she was made aware of the VA

appraiser’s finding of cracks in the masonry, she called her realtor, Tulena Francis

(Francis), and the home inspector that she had hired. She conveyed to them that she

was not comfortable with the report and that she did not want to have to do

foundation repairs. Kimberly testified that she was told that an engineer was being

hired as suggested by the VA appraiser. Before the engineer’s report was received,

Kimberly told Shane to call PSM and tell them that they were not going to purchase

the house because of the foundation problems. When asked why they went through

with the sale anyway, Kimberly testified: “[w]e were told that there would be fees,

penalties, and we would be subject to a lawsuit, and we just did not have the money

at the time for that.” She further testified that she was given Butler’s report at the

closing but had not seen it before then. Based on this testimony, Relators assert that

the Pierces cannot prove that they relied upon the Butler report to their detriment.

The Pierces assert that Relators ignored Kimberly’s testimony that prior to

closing, Francis told her that an engineer had looked at the property and that his

report stated that the foundation was “fine, it was superficial, and that they were

going to be repairing it.” Kimberly testified that when she was given Butler’s report

at closing, it was consistent with what Francis told her. Kimberly stated: “we

accepted the report and took the information that we were given.” According to the 5 Pierces, the fact that they had not physically received Butler’s report before the

closing does not lead to the conclusion that they could not have relied on it to their

detriment.

Relators assert that the thing on which the Pierces rely must be known to them

prior to making a decision. We find that Kimberly’s deposition testimony

establishes that the Pierces were aware of the content of Butler’s report before

closing.

“Issues that require the determination of reasonableness of acts and conduct

of parties under all facts and circumstances of the case cannot ordinarily be disposed

of by summary judgment.” McLin v. HI HO, Inc., 13-36, p. 6 (La.App. 1 Cir. 6/7/13),

119 So.3d 830, 834 (citations omitted). Summary judgment “is not appropriate for

judicial determination of subjective facts, such as motive, intent, good faith, or

knowledge that calls for credibility evaluations and the weighing of testimony.”

Thomas v. Hodges, 10-2637, p. 1 (La. 2/11/11), 54 So.3d 1109, 1109.

We find that Kimberly’s deposition testimony does not establish that she and

Shane could not have relied on Butler’s report to their detriment. Moreover, we find

that Kimberly’s deposition testimony does not establish that the Pierces based their

decision to proceed with the sale only on the alleged threats made by PSM.

Accordingly, we find that the trial court did not err in denying Relators’ motion for

summary judgment on this issue.

Loss of Consortium

“Generally, to be entitled to loss of consortium damages, the petitioner must

be a member of a specific class, for example, the spouse of the victim.” Morales v.

Davis Bros. Constr. Co., 97-1648, pp. 4-5 (La. App. 4 Cir. 1/28/98), 706 So.2d 1048,

1050 (citations omitted). Relators contend that Kimberly and Shane had to be

married at the time of the sale in order to claim loss of consortium damages. They 6 base their argument on Leckelt v. Eunice Superette, Inc., 555 So.2d 11 (La.App. 3

Cir. 1989), writ denied, 559 So.2d 141 (La.1990), wherein this court held that a

spouse who marries a tort victim after the accident cannot maintain a claim for loss

of consortium under La.Civ.Code art. 2315. In that case, the plaintiff and his wife

lived together for several years prior to the accident and had children together but

were not married at the time of the accident. This court went on to state that even if

there was a right of action, it failed to see how any damages could be proven because

the accident could not have an effect on a marriage that did not exist at the time of

the accident.

Kimberly testified in her deposition that at the time of the purchase of the

subject property, she and Shane were not married. They had been married and

divorced. Kimberly’s deposition establishes that she and Shane remarried in May

of 2014, after the sale, and that they sought marriage counseling in 2015. Kimberly

related the problems in her marriage to the stress caused by the subject incident,

children, work, and trust issues.

None of the documents introduced by Relators show when the Pierces were

divorced or exactly when they remarried. The closing documents attached to

Kimberly’s deposition show that Shane and Kimberly signed the mortgage

indicating that they were married. Shane gave Kimberly a power of attorney to sign

all the documents relating to the purchase of this home for him, and the act of cash

sale represents that Shane and Kimberly “are currently married.”

None of the documents introduced by Relators shows whether the Pierces

were married or divorced when the foreclosure occurred or when the alleged loss of

financial reputation affected the Pierces’ ability to obtain financing for other

purchases.

7 The petition alleges that Kimberly required medical treatment due to anxiety

allegedly caused by this incident. None of the documents introduced by Relators

shows whether the Pierces were divorced or married at the time this treatment

occurred.

The Pierces contend that unless Relators can show that the Pierces “used

marriage just as an artifice to benefit one spouse,” the rule of Leckelt, 555 So.2d 11,

should not apply. This argument is without merit because a party either does or does

not belong to the classes of persons entitled to recover damages for loss of

consortium under La.Civ.Code art. 2315.

The Pierces also contend that because the nature of the damages they claim

are continuing, summary judgment precluding any damages for loss of consortium

is inappropriate. This argument overlooks the fact that continuing damages cannot

be separated from the continuing tort doctrine which applies as an exception to

prescription where the defendants owe a continuing duty to the plaintiff that they

continue to breach, and which causes a continuing injury or damages that arise day

to day. See Crump v. Sabine River Authority, 737 So.2d 720 (La.1999), wherein the

court found that the act of digging a canal was the single cause of the injury for

prescriptive purposes even though there were continuing ill effects from the tortious

act. “When a defendant’s damage-causing act is completed, the existence of

continuing damages to a plaintiff, even progressively worsening damages, does not

present successive causes of action accruing because of a continuing tort.” In re

Med. Review Panel for Claim of Moses, 00-2643, p. 16 (La. 5/25/01), 788 So.2d

1173, 1183. The Pierces do not allege any continuing conduct on the part of Relators.

As such, the continuing tort doctrine is not applicable.

We note, however, that in Aldredge v. Whitney, 591 So.2d 1201 (La.App. 2

Cir. 1991), the court held that an exception of no right of action would not be granted 8 on the basis that the marriage occurred after the tortious act where the injuries did

not become apparent until after the marriage. In that case, the subject accident

occurred in January 1989, and the marriage took place in June 1989. The wife did

not begin experiencing back pain until October 1989. The court stated that

assuming4 that his wife’s back pain was caused by the accident, Aldredge had a

cause of action for loss of consortium.

The motion for summary judgment in this case is analogous to an exception

of no right of action. Relators have failed to show that the Pierces do not have claims

for loss of consortium based solely on the fact that they were not married on the date

of the sale because Relators did not prove that all of the damages claimed were

apparent before the Pierces remarried. Even though the Pierces may not be able to

prove any damages for loss of consortium at trial, Relators have not shown that the

Pierces cannot assert those claims. Accordingly, we find that the trial court did not

err in denying the motion for partial summary judgment as to the loss of consortium

claims.

WRIT DENIED. We find no error in the trial court’s rulings.

4 The allegations of the petition are accepted as true when deciding an exception of no right of action. Patriot Constr. & Equip., LLC v. Rage Logistics, LLC, 15-1136 (La.App. 3 Cir. 4/6/16), writ denied, 16-864 (La. 9/6/16), 205 So.3d 917. 9