Rodgers v. Johnson

• Decision Date: 28 February 1990
• Docket Number: No. 21,300-CA,21,300-CA
• Citation: 557 So.2d 1136
• Parties: Michelle Leonette RODGERS, Plaintiff-Appellant, v. Bobby Gene JOHNSON, Lucy Laurene Smith Johnson, Morris Real Estate & Associates, Inc., Benee Morris-Irwin and Ed Carlyle, Defendants-Appellees. 557 So.2d 1136
• Court: Court of Appeal of Louisiana — District of US

Page 1136

557 So.2d 1136

Michelle Leonette RODGERS, Plaintiff-Appellant, v. Bobby Gene JOHNSON, Lucy Laurene Smith Johnson, Morris Real Estate & Associates, Inc., Benee Morris-Irwin and Ed Carlyle, Defendants-Appellees.

No. 21,300-CA.

557 So.2d 1136

Court of Appeal of Louisiana Second Circuit.

Feb. 28, 1990.

Peatross, Greer and Frazier by John M. Frazier, Shreveport, for plaintiff-appellant.

Blanchard, Walker, O'Quin & Roberts by James W. Wyche, Shreveport, for defendants-appellees Morris Real Estate & Associates, Inc., Benee Morris-Irwin and Ed Carlyle.

Before HALL, NORRIS and HIGHTOWER, JJ.

HIGHTOWER, Judge.

Plaintiff, Michelle Leonette Rodgers, appeals a summary judgment rendered against her and in favor of Morris Real Estate and Associates, Inc., and its salespersons, Benee Morris-Irwin ("Irwin") and Ed Carlyle. For the reasons hereinafter expressed, we reverse and remand the matter to the trial court.

BACKGROUND

On November 25, 1986, plaintiff purchased a house from Bobby Gene Johnson and his wife for the price of $55,700. Irwin and Carlyle assisted and represented plaintiff in the transaction. Soon after moving into her new residence, plaintiff began to discover significant defects in the premises. More particularly, stair-step shaped cracks in the exterior brick veneer, separations and cracking in the interior walls of the house, and other foundation-related problems appeared.

Apparently unable to amicably resolve her dispute with the vendors and realtors, plaintiff commenced the instant suit on November 24, 1987. It seeks rescission, or, alternatively, a price reduction, due to unapparent vices which could not have been discovered by simple inspection, and also seeks damages. Named as defendants were the Johnsons, Morris Real Estate, Irwin, and Carlyle, the liability of the latter three, for damages, being predicated on their failure to advise plaintiff of the defects despite the reliance she had placed in their expertise.

Morris Real Estate and the two agents subsequently filed a motion for summary judgment and advanced several supporting arguments. Not occupying the position of sellers, no redhibitory action is available against them, they contended. (The correctness of that position eventually was conceded by plaintiff, who asserted that the realtors nevertheless were liable for negligent or intentional misrepresentations.) Next, it was argued that liability arises only for a failure to disclose defects of which the real estate agent had knowledge, thus requiring willful, knowing or negligent misrepresentation. It was maintained that the affidavits and depositions demonstrate that no representative of Morris had knowledge of any hidden or unapparent defects in the house. In their affidavits, Irwin and Carlyle stated flatly that they were cognizant of no defects prior to the sale. Finally, it was urged that language in the sales agreement between plaintiff and the Johnsons absolves the brokers and agents from any liability.

The motion was argued to the trial court and granted. This appeal ensued.

DISCUSSION

Of course, the legal principles regarding a summary judgment are well settled. A motion for summary judgment is properly granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with 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. LSA-C.C.P. Art. 966; Chaisson v. Domingue, 372 So.2d 1225 (La.1979). The burden of proof in a motion for summary judgment is on the mover to establish that there are no genuine issues of material fact. This is a difficult burden. Only when reasonable minds must inevitably concur is summary judgment warranted and any doubt should be resolved in favor of trial on the merits. Sargent v. La. Health Serv. & Indem. Co., 550 So.2d 843 (La.App. 2d Cir.1989); Ebarb v. Erwin, 530 So.2d 1166 (La.App. 2d Cir.1988). The mover's pleadings, affidavits and documents are to be scrutinized closely while those of the opponent are to be indulgently treated. Toole v. Tucker, 519 So.2d 348 (La.App. 2d Cir.1988), writ denied, 521 So.2d 1156 (La.1988). Summary judgment is not to be used as a substitute for a full trial of a controverted factual issue which is material to the decision of the case. The likelihood that a party will be unable to prove his allegations at trial does not constitute a basis for entering summary judgment. Adams v. Traveler's Ins. Co., 420 So.2d 507 (La.App. 2d Cir.1982), writ denied, 422 So.2d 426 (La.1982). Making evaluations of credibility has no place in determining a summary judgment. Watson v. Cook, 427 So.2d 1312 (La.App. 2d Cir.1983). A motion for summary judgment is not appropriate for disposition of cases requiring a judicial determination of subjective facts such as motive, intent, good faith, and knowledge. Watson v. Cook, supra; Ortego v. Ortego, 425 So.2d 1292 (La.App. 3rd Cir.1982), writ denied, 429 So.2d 147 (La.1983), appeal after remand, 471 So.2d 1106 (La.App. 3rd Cir.1985).

A purchaser's remedy against realtors is in damages for fraud, under LSA-C.C. Art. 1953, et seq., or for negligent misrepresentation, under LSA-C.C. Art. 2315. Davis v. Davis, 353 So.2d 1060 (La.App. 2d Cir.1977); Reeves v. Weber, 509 So.2d 158 (La.App. 1st Cir.1987).

Pertinent portions of deposition testimony disclosed that in approximately late September 1986, the Johnsons listed their home in Bossier City for sale with Morris Real Estate. The actual listing agent was Carlyle, a friend of the Johnson family. He apparently came to the house late one evening and listed it with little or no inspection of the exterior or interior, save for looking into each room. Thereafter, prior to the sale, he returned to the residence only once, that occurring to place a sign in the yard and take a picture for a compilation of homes for sale. However, Mr. Johnson, despite believing a stair-step crack on the front exterior of the house to be quite obvious, stated that he probably advised Carlyle of that defect. [In his deposition, Carlyle acknowledged that such cracks are one "telltale" indication of a cracked foundation.] Additionally, cracks in the interior of the house, particularly near windows, had been caulked and painted. Although claimed by Mr. Johnson to be similarly obvious, those imperfections were pointed out to no one.

Soon after the house was placed on the market, Irwin was contacted by her friend, plaintiff, who wanted to find a new home which would place her children in a different school district. After further inquiry and reflection, Irwin decided the Johnson residence satisfied plaintiff's requirements. Around the end of October, plaintiff and Irwin went together to see the house.

According to plaintiff, during the initial visit, she and Irwin looked around the house with Mrs. Johnson. The bedroom on the rear of the residence was being painted at that time. After viewing the premises, plaintiff and Irwin went to the real estate agency office and discussed the house with Carlyle.

Several days later, plaintiff, along with her boyfriend and again accompanied by Irwin, returned to the house and found both Mr. and Mrs. Johnson there. While inspecting the property on that occasion, cracks in the patio were observed. Mrs. Johnson indicated that the patio was a structure separate from the house. Nevertheless, being concerned, plaintiff inquired about the possibility of an engineer examining the house. However, Mr. Johnson stated, in response, that a friend of his, an engineer, had already...