WHITNEY PRUSSIA v. EUGENE COLLEY IV ET AL (2025)

Defendant/relator, Riverside Home Inspections, L.L.C., seeks review of the trial court's November 6, 2024 judgment, denying its exception of no cause of action and motion for partial summary judgment. For the following reasons, we affirm the trial court's judgment.

FACTS

This case involves a redhibition claim against multiple defendants, including Riverside, who conducted an inspection of the subject property prior to the sale. Plaintiff asserts causes of action based on fraud, negligence, and breach of contract. Plaintiff alleges that Riverside misrepresented the sufficiency of its inspection report prior to plaintiff's purchase of the subject property.

According to the petitions, Riverside performed two inspections on the subject property in August 2021. The first inspection preceded Hurricane Ida, and the second inspection followed Hurricane Ida. Plaintiff purchased the subject property in September 2021 and discovered termite infestation and structural damage in 2022.

Plaintiff alleged that Riverside only identified a limited number of issues and did not identify any termite activity or structural issues in its report. In addition, plaintiff claimed that Riverside had “actual knowledge” of the insufficiency of the report.

In its exception of no cause of action, Riverside argued plaintiff's fraud claim should be dismissed because the petitions lacked the requisite specificity required to state a fraud claim. In its motion for partial summary judgment, Riverside argued there is no genuine issue of material fact that plaintiff failed to state her fraud claim with the required specificity. Riverside asserted that plaintiff's claim is based on negligence, not fraud, and that plaintiff has presented no evidence to support her fraud claim.

In opposition, plaintiff asserted the exception of no cause of action should be denied because, accepting plaintiff's well-pleaded allegations as true, the petition asserts intentional substandard inspections, omissions, and a failure to disclose information. As to the motion for partial summary judgment, plaintiff argued that genuine issues of material fact existed regarding whether the inspector intentionally misled plaintiff. Plaintiff also argued that discovery is ongoing among seven parties in this lawsuit.

After a hearing, the trial court denied Riverside's exception of no cause of action and motion for partial summary judgment.

LAW AND ANALYSIS

Riverside asserts the trial court erred in denying both the exception of no cause of action and the motion for partial summary judgment. We address each below.

The Exception of No Cause of Action

In ruling on the exception of no cause of action, the court must decide whether the petition on its face alleges facts which entitle the claimant to relief provided by law, assuming all factual allegations therein to be true.

The exception of no cause of action tests the legal sufficiency of the petition by determining whether the law affords a remedy on the facts alleged in the pleading. Fink v. Bryant, 01-0987 (La. 11/29/01), 801 So.2d 346, 348; Khoobehi Props., LLC v. Baronne Dev. No. 2, L.L.C., 16-506 (La. App. 5 Cir. 3/29/17), 216 So.3d 287, 297. This exception is triable on the face of the petition and, for the purpose of determining the issues raised by the exception, the well-pleaded facts in the petition must be accepted as true. Indus. Companies, Inc. v. Durbin, 02-665 (La. 1/28/03), 837 So.2d 1207, 1213; Fink, 801 So.2d at 349. We review the exception of no cause of action de novo because the exception raises a question of law and the court's decision is based solely on the sufficiency of the petition. Id.; Khoobehi Props, LLC, 216 So.3d at 297.

Louisiana law provides for a liberal construction of pleadings in La. C.C.P. art. 865, which states that “[e]very pleading shall be so construed as to do substantial justice.” A petition should not be dismissed for failure to state a cause of action unless it appears beyond doubt that the plaintiff can prove no set of facts in support of any claim which would entitle him to relief. Indus. Companies, Inc. v. Durbin, 837 So.2d at 1213; Fink, 801 So.2d at 349. “Pleadings must be construed reasonably so as to afford litigants their day in court. When it can reasonably do so, the trial court should maintain a petition against a peremptory exception so as to afford the litigant an opportunity to present his evidence.” Gibson, 275 So.3d at 495.

La. C.C. art. 1953 defines fraud as “a misrepresentation or a suppression of the truth made with the intention either to obtain an unjust advantage for one party or to cause a loss or inconvenience to the other. 1 Fraud may also result from silence or inaction.” Ogea v. Merritt, 13-1085 (La. 12/10/13), 130 So.3d 888, 897-98. Pursuant to La. C.C. art. 1954, fraud does not vitiate consent when the party against whom a fraud is directed could have ascertained the truth without difficulty, inconvenience or special skill. Autin v. Autin, 617 So.2d 229, 233 (La. App. 5th Cir. 1993), writ denied, 620 So.2d 846 (La. 1993).

After de novo review and accepting all facts pleaded in the petitions as true, we find plaintiff states a cause of action for fraud against Riverside. Plaintiff alleges Riverside had “actual knowledge” that the inspection was insufficient, failed to identify termite infestation and structural damage, and misrepresented the sufficiency of the report. Accordingly, construing the allegations in favor of allowing plaintiff an opportunity to pursue her claim, we find no error in the trial court's denial of Riverside's exception of no cause of action.

The Motion for Partial Summary Judgment

After an opportunity for adequate discovery, a motion for summary judgment shall be granted if the mover has shown that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966 A(3) and D; Dye v. LLOG Expl. Co., LLC, 20-441 (La. App. 5 Cir. 11/3/21), 330 So.3d 1222, 1224. A material fact is one that potentially insures or precludes recovery, affects a litigant's ultimate success, or determines the outcome of the legal dispute. Hines v. Garrett, 04-0806 (La. 6/25/04), 876 So.2d 764, 765 (per curiam); Smith v. Our Lady of the Lake Hospital, Inc., 93-2512 (La. 7/5/94), 639 So.2d 730, 751. A genuine issue is one as to which reasonable persons could disagree; if reasonable persons could reach only one conclusion, there is no need for trial on that issue and summary judgment is appropriate. Hines, 876 So.2d at 765; Smith, 639 So.2d at 751. In deciding whether the evidence creates a genuine issue of material fact, the trial court cannot make credibility determinations, evaluate testimony, or otherwise weigh the evidence. See Smith, 639 So.2d at 751; Janney v. Pearce, 09-2103 (La. App. 1 Cir. 5/7/10), 40 So.3d 285, 289, writ denied, 10-1356 (La. 9/24/10), 45 So.3d 1078.

A court must construe factual inferences reasonably drawn from the evidence in favor of the party opposing a motion for summary judgment, and all doubt must be resolved in the opponent's favor. Willis v. Medders, 00-2507 (La. 12/8/00), 775 So.2d 1049, 1050; Montalbano v. Persich, 18-602 (La. App. 5 Cir. 5/29/19), 274 So. 3d 855, 860–61, writ denied, 19-1051 (La. 10/1/19), 280 So.3d 161. Summary judgment is seldom appropriate for determinations based on subjective facts of motive, intent, good faith, knowledge, or malice, but summary judgment may be granted on subjective intent issues when no issue of material fact exists concerning the pertinent intent. B & P Rest. Grp., LLC, 279 So.3d at 499.

Appellate courts review a judgment granting a motion for summary judgment de novo using the same criteria that govern the trial court's determination of whether summary judgment is appropriate, i.e., whether there is any genuine issue of material fact, and whether the mover is entitled to judgment as a matter of law. Creager v. Marrero Land & Improvement Ass'n Ltd., 21-322 (La. App. 5 Cir. 2/23/22), 362 So.3d 696, 700; Faciane v. Golden Key Div. Ltd. P'ship, 17-636 (La. App. 5 Cir. 5/23/18), 249 So.3d 230, 233. Upon de novo review, we do not find summary judgment appropriate at this time.

First, there are at least six defendants involved in this litigation, and plaintiff indicates that there is outstanding discovery propounded on multiple co-defendants. Thus, plaintiff is still in the process of developing evidence in support of her claims against Riverside.

Second, Riverside relies heavily on the fact that plaintiff responded, “I don't know”, to one question from Riverside counsel's as to whether she believed that Jason Pelloat, Riverside's inspector, was aware of the termite damage in the subject property and purposefully did not tell her about it. Riverside, however, ignores that just prior to that question, counsel asked plaintiff, “do you believe Jason did an inspection, found these items and purposefully failed to tell you about them?” and plaintiff responded, “I think that, yes.” In this regard, we point out that Riverside attached a limited number of pages of plaintiff's deposition attached to the writ application. Based on those pages alone, we cannot say no genuine issue of material fact exists.

Third, the law indicates that fraud may also result from silence or inaction. Ogea, 130 So.3d at 897-98. Thus, plaintiff's allegation that Riverside had actual knowledge and misrepresented the sufficiency of the report is sufficient to allege fraud. We therefore find no merit to Riverside's assertion that no genuine issue of material fact exists as to whether plaintiff sufficiently alleged fraud.

Finally, we point out that summary judgment is seldom appropriate for determinations regarding intent and knowledge. B & P Rest. Grp., LLC, 279 So.3d at 499. In addition, on summary judgment, it is not proper to evaluate testimony, or weigh the evidence. Smith, 639 So.2d at 751; Janney, 40 So.3d at 285. Thus, we cannot say at this time that no genuine issue of material fact exists regarding plaintiff's fraud claim against Riverside. We therefore find no error in the trial court's denial of Riverside's motion for partial summary judgment.

CONCLUSION

Accordingly, we affirm the trial court's judgment denying Riverside's exception of no cause of action and motion for partial summary judgment.

AFFIRMED

FIFTH CIRCUIT

101 DERBIGNY STREET (70053)

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GRETNA, LOUISIANA 70054

www.fifthcircuit.org

SUSAN M. CHEHARDY CHIEF JUDGE

FREDERICKA H. WICKER

JUDE G. GRAVOIS

MARC E. JOHNSON

STEPHEN J. WINDHORST

JOHN J. MOLAISON, JR.

SCOTT U. SCHLEGEL

TIMOTHY S. MARCEL

JUDGES

CURTIS B. PURSELL CLERK OF COURT

SUSAN S. BUCHHOLZ CHIEF DEPUTY CLERK

LINDA M. WISEMAN FIRST DEPUTY CLERK

MELISSA C. LEDET DIRECTOR OF CENTRAL STAFF

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NOTICE OF JUDGMENT AND CERTIFICATE OF DELIVERY

I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY MAY 14, 2025 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:

24-C-614

E-NOTIFIED

24TH JUDICIAL DISTRICT COURT (CLERK)

HONORABLE E. ADRIAN ADAMS (DISTRICT JUDGE)

SHARON I. CORONA (RESPONDENT) PAUL D. PALERMO (RELATOR) KRISTINA J. FONTE (RESPONDENT)

GUS A. FRITCHIE, III (RESPONDENT)

MAILED

CRAIG V. SWEENEY (RELATOR)

APRIL L. WATSON (RELATOR)

ATTORNEYS AT LAW

3421 NORTH CAUSEWAY BOULEVARD

SUITE 900

METAIRIE, LA 70002

CRAIG V. SWEENEY (RESPONDENT)

APRIL L. WATSON (RESPONDENT)

ATTORNEYS AT LAW

3421 NORTH CAUSEWAY BOULEVARD

SUITE 900

METAIRIE, LA 70002

FOOTNOTES

1.   Plaintiff need only prove fraud by a preponderance of the evidence and may use circumstantial evidence in doing so. La. C.C. art. 1957. B & P Rest. Grp. LLC v. Delta Admin. Servs., LLC, 18-442 (La. App. 5 Cir. 9/4/19), 279 So.3d 492, 500, writ denied sub nom. B&P Rest. Grp., LLC v. Delta Admin. Servs., LLC, 19-01755 (La. 1/14/20), 291 So.3d 685.

WINDHORST, J.