CUNNIKIN v. MS AND EF LLC (2026)

Plaintiffs Dennis and Renee Cunnikin appeal the judgment of the trial court, granting the motions for summary judgment filed by Defendants Mark and Elaine Setliff, MS&EF, LLC, and Louisiana Lagniappe Realty, LLC and dismissing Plaintiffs’ claims with prejudice. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

On September 24, 2018, the Cunnikins executed an Act of Cash Sale for the purchase of a one-acre tract of immovable property from MS&EF, LLC and Mark Setliff in Alexandria, Louisiana. This tract was part of a larger 2.75-acre tract known as Lot 30 owned by MS&EF, LLC. Prior to the sale of the one-acre tract, Lot 30 was subdivided into three separate tracts: two one-acre tracts and a .75-acre tract. Elaine Setliff acted as dual real estate agent for the sale, and her sponsoring real estate broker company was Louisiana Lagniappe Realty, LLC. The Cunnikins bought the lot with the intention of placing a manufactured home on the property. This matter arises from this transaction.

After the sale of the property, the Cunnikins moved their manufactured home onto the land. However, they were prevented from securing the proper permits necessary to occupy their home and run utilities to it. The Cunnikins sought a variance from the Rapides Parish Police Jury, but they were denied. The Defendants’ application to the commission to re-subdivide the property was also denied. The manufactured home remained unoccupied from 2018 until the lender took it back in 2024, when the Cunnikins were forced to file a Chapter 13 bankruptcy proceeding.

The Cunnikins filed suit against Defendants on February 7, 2020. Specifically, the Cunnikins allege that the Setliff Defendants failed to properly subdivide the property by failing to follow a local ordinance requiring all subdivided lots with Rapides Parish to have a minimum lot size of one acre. They further allege that they failed to seek approval from the Rapides Area Planning Commission and the Rapides Parish Police Jury. Due to these failures, the Cunnikins contend they were unable to secure a development permit allowing them to move the custom five-bedroom manufactured home that they purchased onto the property. They were also prevented from securing utilities to the property. The Cunnikins’ claims against Elaine Setliff and Louisiana Lagniappe Realty, LLC arise from their allegations that Elaine Setliff failed to disclose this information as the dual real estate agent for the sale.

In the Setliff Defendants’ July 23, 2020 answer with affirmative defenses, they alleged plaintiff and third-party fault, specifically that the Cunnikins failed to perform proper due diligence and their title agent failed to locate any ordinances preventing re-subdivision and failed to advise the Cunnikins of any permit-related problems with the property.

Consequently, the Cunnikins filed a first supplemental and amending petition on December 22, 2020, adding as Defendants Alexandria Land and Title, LLC and Dana Roxanne Lee. The amending petition alleged Alexandria Land and Title, LLC and Ms. Lee conducted the closing of the sale of the property at issue. It further alleged that Ms. Lee, as closing attorney, had an obligation to verify that the property was properly subdivided and that merchantable title could pass to the Cunnikins.

In response, Alexandria Land and Title, LLC and Ms. Lee filed an answer and exception of peremption. The exception alleged that the amending petition was filed more than a year after the Cunnikins knew or should have known of their claims against Alexandria Land and Title, LLC and Ms. Lee. The trial court rendered judgment on the exception in favor of Alexandria Land and Title, LLC and Ms. Lee. The Cunnikins appealed. The subject of that appeal is found in Cunnikin v. MS and EF, LLC, 22-65 (La.App. 3 Cir. 9/21/22) (2022 WL 4362083) (unpublished opinion). A panel of this court affirmed the trial court, and Alexandria Land and Title, LLC and Ms. Lee were dismissed from the suit with prejudice.

On February 25, 2025, the Cunnikins filed a second supplemental and amending petition for damages, wherein they allege that the issues with the subdivision are not listed on the property disclosure form and assert that the title transferred to the Cunnikins from the Setliff Defendants constitutes bad title to the property.

On March 11, 2025, the Setliff Defendants and Louisiana Lagniappe Realty, LLC filed separate motions for summary judgment. Louisiana Lagniappe Realty, LLC also filed a motion for partial summary judgment. After a hearing on April 14, 2025, the trial court granted the motions for summary judgment filed by the Setliff Defendants and Louisiana Lagniappe Realty, LLC. As a result of this ruling, the trial court found Louisiana Lagniappe Realty LLC's partial motion for summary judgment to be moot. The Cunnikins’ claims against the Defendants were dismissed with prejudice. The Cunnikins now appeal.

LAW AND DISCUSSION

I. Standard of Review

“The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action, except those disallowed by Article 969. The procedure is favored and shall be construed to accomplish these ends.” La.Code Civ.P. art. 966(A)(2). “[A] motion for summary judgment shall be granted if the motion, memorandum, and supporting documents show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law.” La.Code Civ.P. art. 966(A)(3).

In O'Neal v. Foremost Insurance Co., 24-212, p. 4 (La.App. 3 Cir. 6/25/25), 416 So.3d 809, 813, this court explained:

[T]he burden of producing evidence at the motion hearing is “on the mover, who can ordinarily meet that burden by submitting affidavits or by pointing out the lack of factual support for an essential element in the opponent's case.” Schultz v. Guoth, 10-343, p. 6 (La. 1/19/11), 57 So.3d 1002, 1006. Procedurally, therefore, the court's first task is to determine whether the moving party's motion, memorandum, affidavits, and supporting documents “are sufficient to resolve all material factual issues.” Smith v. Our Lady of the Lake Hosp., Inc., 93-2512, p. 28 (La. 7/5/94), 639 So.2d 730, 752. “To satisfy this burden, the mover must meet a strict standard of showing that it is quite clear as to what is the truth and that there has been excluded any real doubt as to the existence of a genuine issue of material fact.” Indus. Sand & Abrasives, Inc. v. Louisville & Nashville R.R. Co., 427 So.2d 1152, 1154 (La.1983).

The appellate standard of review on a motion for a summary judgment is de novo. 23rd Psalm Trucking, L.L.C. v. Madison Par. Police Jury, 24-808 (La. 6/27/25), 413 So.3d 370. “[A]n adverse party may not rest on the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided above, must set forth specific facts showing that there is a genuine issue for trial.” La.Code Civ.P. art. 967(B).

II. Motion for Summary Judgment filed by MS&EF, LLC and Mark and Elaine Setliff

The Cunnikins argue that there are genuine issues of material fact precluding summary judgment. Specifically, they argue that there is a question of ownership regarding the property they purchased.

In 1992, Lot 30 was purchased by Mark and Elaine Setliff. They transferred the property to MS&EF, LLC in 2006. In May 2016, Lot 30 was divided into three (3) lots by a survey prepared by William J. Wood, Jr., which was recorded in the Rapides Parish conveyance records on May 13, 2016, at Book 2035, Page 974, in conjunction with the sale of Tract 1 to Kimberly Lafollette. The piece of property purchased by the Cunnikins is described as “Tract 2 – 1.00 +/- ACRES” on the Wood Survey.

On July 31, 2018, the Cunnikins entered into a purchase agreement with MS&EF, LLC and Mark Setliff which states, in pertinent part:

ZONING: In the event the close of this sale is conditioned upon the ability of the Purchaser to use it for any given use (e.g. zoning, commercial, industrial, or multi-family), the Purchaser shall take it upon himself to verify zoning and his ability to obtain a building permit.

An “AS IS” ACCEPTANCE ADDENDUM was executed by the Cunnikins on the same day as the purchase agreement. It states (emphasis added):

THE PROPERTY DESCRIBED ABOVE IS BEING SOLD “AS IS” AND THIS SALE WILL BE MADE WITHOUT ANY WARRANTIES, EXPRESSED OR IMPLIED, AS TO ITS FITNESS FOR USE OR CONDITION, EVEN AS TO WARRANTY OF TITLE[.] FURTHER, VENDEE(S) BUYER(S) DECLARE THAT THEY HAVE EXAMINED THE ABOVE DESCRIBED PROPERTY PRIOR TO THE DATE OF THIS ACCEPTANCE AND THEY SPECIFICALLY WAIVE ALL RIGHTS AGAINST VENDER [sic] (VA), INCLUDING ANY AND ALL CLAIMS THAT THEY (VENDEES) MAY HAVE TO REDHIBITORY DEFECTS AND MORE PARTICULARLY WAIVE ALL OF THOSE RIGHTS PROVIDED FOR PURSUANT TO LOUISIANA CIVIL CODE ARTICLES 2475, 2476 AND 2520 THROUGH 2548 INCLUSIVE. VENDEE(S) ACKNOWLEDGE(S) THAT THIS CLAUSE HAS BEEN BROUGHT TO THEIR ATTENTION AND EXPLAINED TO THEM.

Also on July 31, 2018, a PROPERTY CONDITION DISCLOSURE FORM was signed by the Cunnikins. In it, the seller was asked whether they are “aware of any deed restrictions or subdivision restrictions not recorded,” and the answer was “unknown.” This document was signed by both Mark and Elaine Setliff.

The ACT OF CASH SALE was executed on September 24, 2018. It states, in pertinent part (emphasis added):

The Property is sold subject to any and all applicable covenants, conditions, restrictions, servitudes, rights of way, outstanding mineral interest and other matters which may appear in the chain of title or elsewhere in the public records of RAPIDES Parish, Louisiana, the reference to enumeration of which shall not serve to interrupt or revive prescription thereon, recognize the validity thereof, or acknowledge, ratify or conform same.

․

The sale of the Property is made on an “AS IS,” “WHERE IS” basis, and Purchasers expressly acknowledges that, except as to title of the Property, Sellers make no warranty or representation express or implied, or arising by operation of law, including but not limited to any warranty of condition, habitability, merchantability or fitness for a particular purpose, in respect of the Property, Purchasers expressly waive warranty of fitness and warranty against redhibitory vices imposed by La Civ Code Ann arts 2475, 2524 or any other applicable state or federal law. Purchasers further waive any rights it may have in redhibition or to a reduction in or restitution of purchase price and revenues and/or costs pursuant to La. Civ Code Ann arts 2520 to 2548, inclusive, in connection with the purchase of the Property.

The Setliff Defendants argue that the act of sale is the law between the parties and that it specifically states that there is no liability on behalf of the sellers. “Contracts have the effect of law for the parties[.]” La.Civ.Code art. 1983. “ ‘[A] party who signs a written instrument is presumed to know its contents and cannot avoid its obligations by contending that he did not read it, that he did not understand it, or that the other party failed to explain it to him.’ ” Rung v. Bessard, 23-560, p. 10 (La.App. 3 Cir. 3/13/24), 381 So.3d 1000, 1007 (alteration in original) (quoting Aguillard v. Auction Mgmt. Corp., 04-2804, 04-2857, p. 22 (La. 6/29/05), 908 So.2d 1, 17).

The Cunnikins point out that the “AS IS” ACCEPTANCE ADDENDUM and the ACT OF CASH SALE are at odds as to whether the sellers warranty title to the property. The Cunnikins argue that because the act of sale was executed after the addendum, the Setliff Defendants did warranty title. In their brief they argue “the warranty of title to the Cunnikins as a place for their family home, to be able to live in the home, to be able to mortgage the property, and, if needed, to sell the property, are all elements of the “title” that Sellers provided a warranty for to the Cunnikins.”

We disagree. While the act of sale does differ from the addendum in that it warranties title, it specifically states that the sellers make no warranty as to “habitability, merchantability or fitness [of the property] for a particular use.” As such, the only issue is whether good title passed to the Cunnikins through the Act of Sale, resulting in them acquiring ownership of Tract 2.

There is no evidence in the record that the Setliff Defendants were not the proper owners of the tract of land purchased by the Cunnikins. Further, there is no third party claiming ownership of the land. On the contrary, the Cunnikins hired Alexandria Land and Title, LLC and Dana Lee to conduct a thorough title examination. They also purchased title insurance for this transaction. The insurer has not been made a party to this litigation.

The Cunnikins argue that the Setliff Defendants failed to follow the Rapides Parish Code of Ordinances when they subdivided Lot 30. After purchasing Tract 2, the Cunnikins filed a development permit application with the Rapides Area Planning Commission, which was denied. The letter denying the application stated that one of the reasons it was denied was because Lot 30 had not been re-subdivided in accordance with parish policy. Because the land was not subdivided properly, the Cunnikins maintain the title is defective because they now own a one-third undivided interest in Lot 30 instead of full ownership of Tract 2.

In support of this assertion, the Cunnikins attached an undated two-page memorandum written by Matt Johns, the executive director of the Rapides Area Planning Commission. Mr. Johns wrote:

The proposed location of the mobile home is on a subdivided lot that has not yet been approved by the [Rapides Parish Police Jury]. Parish ordinance requires that the re-subdivision of lots in a previously approved subdivision must follow the normal subdivision review procedures: review and recommendation by the Subdivision Technical Advisory Review Committee (STAR), RAPC, and ultimate approval by the [Rapides Parish Police Jury].

The subdivision regulations for the Parish of Rapides are found in Chapter 22 of the Rapides Parish Code of Ordinances. Lot 30 was first subdivided in 2016, after William J. Wood, Jr. prepared a survey of the land, in conjunction with the sale of Tract 1 to Kimberly Lafollette.

At the time of the sale of Tract 1, Chapter 22, Article 1, Sec. 22-10 (emphasis added) of the ordinances defined a subdivision, in pertinent part, as “[t]he division or resubdivision of a parcel of land into four (4) or more lots for the purpose of development, whether immediate or future or the placement of four (4) or more mobile homes for dwelling purposes.” In addition, Section 22-100 sets forth the general procedures for subdividing property. Section 22-101 (emphasis added) again states that it applies to “[t]he division or resubdivision of land into four (4) or more lots[.]” As Lot 30 was subdivided into three lots, by its own definition, the ordinances relating to division and resubdivision do not apply to Lot 30.

This definition was in place until it was amended in March 2021, to include minor subdivisions, which are defined as:

[A] tract or parcel of land abutting [an] existing public road not involving any new public street, and involving no new street construction, which is proposed to be divided into four (4) or less lots or subparcels for the purpose, whether immediate or future, of transferring ownership of said lot or subparcel to another owner.

Chapter 22, Article 1, Sec. 22-101 was also amended on the same date to set forth the procedures for “[t]he division or resubdivision of land into two (2) or more lots[.]” These ordinances were not enacted at the time of the original division of Lot 30 or the sale of Tract 2 to the Cunnikins. Chapter 22, Article 1, Sec. 22-3 of the ordinances specifically states that the regulations shall not apply to “[l]and in subdivision previously recorded, except in the case of resubdivision[.]”

After a review of the ordinances in place at the time of both the original subdivision of Lot 30 in 2016 and the sale of Tract 2 in 2018, we find the Setliff Defendants properly complied with the Rapides Parish Code of Ordinances. The subdivision ordinances found in Chapter 22 did not apply to Lot 30. As a result, the Cunnikins’ argument that their title of Tract 2 is defective due to the improper subdivision of Lot 30 fails.

The Rapides Area Planning Commission also denied the Cunnikins’ development permit application because it “is located within the Airfield Installation Compatible Use Zone (AICUZ), Accident Potential Zone 11 (APZ11) which identifies permanent resident mobile homes as a prohibited use.” However, the evidence shows the restrictions lapsed as to Lot 30 in 2005. The building restrictions were originally enacted in 1970 for a period of twenty years. In 1990, they were extended for fifteen years. There was no extension of the building restrictions recorded in 2005. Therefore, there is no evidence in the record that building restrictions were in place on the subject property at the time of the sale in 2018.

Regardless, in the purchase agreement, the Cunnikins agreed “to verify zoning and [their] ability to obtain a building permit.” Additionally, the act of sale states, “The Property is sold subject to any and all applicable covenants, conditions, restrictions, servitudes, rights of way, outstanding mineral interest and other matters which may appear in the chain of title or elsewhere in the public records of RAPIDES Parish, Louisiana[.]” When the Cunnikins first inquired about purchasing Tract 2, they disclosed to Elaine Setliff that it was their intention to place a manufactured home on the property. Mrs. Setliff then specifically advised the Cunnikins to confirm with the Rapides Area Planning Commission that a manufactured home could be placed on the property prior to the sale.

In her deposition, Mrs. Cunnikin testified that the Rapides Area Planning Commission office told her there were no restrictions on the property. In an April 4, 2019 correspondence with the commission, Mrs. Cunnikin explained that, prior to the purchase of Tract 2, she researched the restrictions recorded at the Rapides Parish Clerk of Court thoroughly “to make certain that there were no active or current building restrictions on file with the State of Louisiana that would prohibit the placement of the manufactured home.” The record shows that Mrs. Cunnikin was told a manufactured home could be placed on the property by the Rapides Area Planning Commission, and relying on this assertion, the Cunnikins followed through with the sale of Tract 2.

We find that, based on the evidence, there were no building restrictions in place on Tract 2 in 2018 when it was sold to the Cunnikins. However, even if there were, the applicable sale documents prove that the responsibility of verifying this information lay with the Cunnikins.

III. Motion for Summary Judgment filed by Louisiana Lagniappe Realty, LLC

The Cunnikins allege claims against Elaine Setliff as a dual real estate professional based on her representation during the sale of the property and against her employer Louisiana Lagniappe Realty, LLC. The Cunnikins argue that Elaine Setliff failed to disclose information pertaining to the improper subdivision of Lot 30 and information about the building restrictions burdening the property.

Louisiana Revised Statutes 9:3894 explains the licensee's relationship with customers as:

A. Licensees shall treat all customers honestly and fairly and when representing a client in a real estate transaction may provide assistance to a customer by performing ministerial acts. Performing those ministerial acts shall not be construed in a manner that would violate the brokerage agreement with the client, and performing those ministerial acts for the customer shall not be construed in a manner as to form a brokerage agreement with the customer.

B. A licensee shall not be liable to a customer for providing false information to the customer if the false information was provided to the licensee by the licensee's client or client's agent and the licensee did not have actual knowledge that the information was false.

Louisiana Revised Statutes 9:3897 allows a licensee to act as a dual agent with the written consent of the clients. “In the case of dual agency, each client and licensee possess only actual knowledge and information. There shall be no imputation of knowledge or information among or between the clients, brokers, or their affiliated licensees.” La.R.S. 9:3897(E).

Louisiana Revised Statutes 9:3199(B) states: “A person representing a seller in the transaction is not liable under this Chapter for any error, inaccuracy, or omission in a property disclosure document, unless the person has actual knowledge of the error, inaccuracy, or omission by the seller.” “A purchaser's remedy against a real estate broker is limited to damages for fraud under LSA–C.C. art.1953 et seq. or for negligent misrepresentation under LSA–C.C. art. 2315.” Osborne v. Ladner, 96-863, p. 16 (La.App. 1 Cir. 2/14/97), 691 So.2d 1245, 1257.

The Osborne court explained:

The action for negligent misrepresentation arises ex delicto, rather than from contract. In order for a plaintiff to recover for negligent misrepresentation, there must be a legal duty on the part of the defendant to supply correct information, a breach of that duty, and damage to the plaintiff caused by the breach. A real estate broker or agent owes a specific duty to communicate accurate information to the seller and the purchaser and may be held liable for negligent misrepresentation. However, the duty to disclose any material defects extends only to those defects of which the broker or agent is aware.

Id. (citations omitted) (emphasis added).

As Defendants point out, the Cunnikins have not produced any evidence that Elaine Setliff had knowledge of the defects of which they complain. Louisiana Code of Civil Procedure Article 966(D)(1) sets forth the burden of proof on a motion for summary judgment. The codal article states:

The burden of proof rests with the mover. Nevertheless, if the mover will not bear the burden of proof at trial on the issue that is before the court on the motion for summary judgment, the mover'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 the absence of factual support for one or more elements essential to the adverse party's claim, action, or defense. The burden is on the adverse party to produce factual support sufficient to establish the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law.

We agree with Defendants that the record lacks evidence that Elaine Setliff knew of any property defects that she did not disclose to the Cunnikins. We have determined that the property was not burdened by building restrictions and that Lot 30 was properly subdivided in accordance with the Rapides Parish Ordinances in place at the time of both the formation of the subdivision and sale of Tract 2. As such, the property did not contain the defects of which the Cunnikins complain, and consequently, Elaine Setliff could not have knowledge of something that did not exist.

IV. Answer to Appeal

Elaine and Mark Setliff and MS&EF, LLC filed an Answer to Appeal requesting an award of attorney's fees for the appeal work done in response to what they deem a frivolous appeal.

Louisiana Code of Civil Procedure Article 2164 states, in pertinent part, that the appellate “court may award damages, including attorney fees, for frivolous appeal or application for writs, and may tax the costs of the lower or appellate court, or any part thereof, against any party to the suit, as in its judgment may be considered equitable.”

In Lloyd v. Elaire, 24-578, p. 15 (La.App. 3 Cir. 3/12/25), 408 So.3d 479, 490 (alterations in original) (quoting Alexander v. Louisiana State Bd. of Priv. Investigator Examiners, 19-778 (La.App. 4 Cir. 4/1/20), 293 So.3d 1243, writ denied, 20-1072 (La. 11/10/20), 303 So.3d 1039), writ denied, 25-448 (La. 6/17/25), 411 So.3d 633), a panel of this court explained:

“Appeals are always favored and, unless the appeal is unquestionably frivolous, damages will not be granted.” Tillmon v. Thrasher Waterproofing, 00-0395, p. 8 (La. App. 4 Cir. 3/28/01), 786 So. 2d 131, 137. This Court further stated that “[a]n appeal is frivolous if it does not present a substantial legal question, if the sole purpose of the appeal is delay, or if the appealing counsel does not seriously believe the view of the law that he advocates.” Id. However, “[t]his court is reluctant to grant frivolous appeal damages because of the chilling effect it may have on the appellate process.” Id.

“Indeed, ‘[t]he slightest justification for an appeal precludes damages for a frivolous appeal.’ ” Lloyd, 408 So.3d at 490 (alteration in original) (quoting Collins v. Franciscan Missionaries of Our Lady of Health System, Inc., 19-577, p. 11 (La.App. 1 Cir. 2/21/20), 298 So.3d 191, 198, writ denied, 20-480 (La. 6/22/20), 297 So.3d 773).

We do not find that the Cunnikins filed this appeal in bad faith or for the purpose of delay. Because appeals are favored and the Cunnikins appeal is not unquestionably frivolous, the request for attorney fees on appeal is denied.

DECREE

The trial court's judgment granting the motion for summary judgment filed by Mark and Elaine Setliff and MS&EF, LLC is affirmed. The trial court's judgment granting Louisiana Lagniappe Realty, LLC's motion for summary judgment is affirmed. The request for attorney fees on appeal made by Mark and Elaine Setliff and MS&EF, LLC is denied. The costs of this appeal are assessed to Plaintiffs, Dennis and Renee Cunnikin.

AFFIRMED.

BRADBERRY, Judge.