Novak et al v. St. Maxent-Wimberly House Condominium, Inc. et al

Filing 177

ORDER AND REASONS: IT IS HEREBY ORDERED that Movants Martin Robinson's and Robinson Realty LLC's Motion for Summary Judgment (Rec. Doc. 126 ) is GRANTED. IT IS HEREBY FURTHER ORDERED that Movants' Motion to Strike Unsworn Declaration of Malcom M. Kelso (Rec. Doc. 131 ) and Motion to Reset Hearing (Rec. Doc. 173 ) are DENIED AS MOOT. Signed by Judge Carl Barbier. (gec)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

TODD NOVAK

CIVIL ACTION

VERSUS

No. 16-6835

ST. MAXENT-WIMBERLY HOUSE
CONDOMINIUM, INC., ET AL.

SECTION: “J”(3)

ORDER AND REASONS
Before the Court are the Defendants’, Martin Robinson’s and
Robinson Realty LLC’s, Motion for Summary Judgment (Rec. Doc. 126),
Motion to Strike Unsworn Declaration of Malcom M. Kelso (Rec. Doc.
131) and Motion to Reset Hearing (Rec. Doc. 173). Parties have had
the opportunity to file their opposition and replies and have done
so.

Having considered the motion and legal memoranda, the record,

and the applicable law, the Court finds that the Movants’ Motion
for Summary Judgment should be GRANTED. Therefore, the Motion to
Strike and the Motion to Reset Hearing are DISMISSED AS MOOT.
FACTS AND PROCEDURAL BACKGROUND
This litigation derives from a dispute over the right to lease
a condominium the Plaintiffs purchased from Michael and Jenny
Tilbury. The Plaintiffs are school teachers residing in California
who hoped to buy a French Quarter condo that they could use as a
vacation home during summer break, but lease during the regular
school year when they would be out-of-state. The Plaintiffs hired
the Movants, Martin Robinson and Robinson Realty, LLC, to act as

their

real

estate

agent

in

making

this

purchase.

Plaintiffs

successfully purchased a condo property with the help of the
Movants, but their plan to lease the condo was thwarted when the
condo’s board of directors informed them that the minimum lease
length had been extended from six months to one year.
Plaintiffs subsequently filed suit against the condo’s board,
the board members in their individual capacities, the sellers, the
sellers’

real

estate

agent,

the

insurance

companies,

and

importantly here, their own real estate agent, and real estate
agent company, the Movants. Against the Movants, Plaintiffs allege
only two (of their total seventeen) causes of action listed in
their second amended complaint (Rec. Doc. 53): (1) Movants were
negligent for failing to inform Plaintiffs of “the affairs” at the
condo complex and its “latent defects” and for failure to ascertain
“proper documentation” existed and also (2) Movants participated
in a civil conspiracy perpetrated against Plaintiffs by the condo
board, sellers’ real estate agents, and sellers.
The Movants then filed their Motion for Summary Judgment (Rec.
Doc. 126). Plaintiffs responded with opposition (Rec Doc. 128),
which cited the unsworn declaration of Malcom M. Kelso (Rec. Doc.
128-3), as the basis for its claims against Movants. Movants
responded with their Motion to Strike Unsworn Declaration of
Malcolm M. Kelso (Rec. Doc. 131). Plaintiffs filed their opposition
to that motion as well (Rec. Doc. 155). Plaintiffs also filed a
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reply (Rec. Doc. 176) to Plaintiffs’ opposition to their Motion
for Summary Judgment.
PARTIES’ ARGUMENTS
Movants argue that they are entitled to summary judgment as
to

both

Movants

Plaintiffs’
argue

that

negligence
the

and

civil

conspiracy

claims.

negligence

claim

must

because

fail

Plaintiffs (1) could not identify any documents that Movants failed
to obtain on their behalf and (2) conceded they had no factual
basis to believe that Movants possessed or withheld knowledge of
any defects or managerial affairs from them (Rec. Docs. 124-4,
124-5). In a typical exchange Plaintiff Todd Novak admits the
following:

Q. And then No. 20, no, I'm sorry. No. 200. The
allegation is, Robinson Realty and Robinson had
knowledge regarding the affairs at St. Maxent, and they
did not disclose the same to the Novaks.
A.
I don't know what Martin Robinson knew about the
affairs of St. Maxent.
Q. And you also circled No. 201. The allegation is,
Robinson Realty and Robinson had knowledge regarding the
latent defects in the property, and they did not disclose
the same to the Novaks.
A. I don’t know what Martin Robinson and Robinson Realty
were aware of.

Plaintiffs have filed in opposition to Movants’ claim that no
factual basis exists for the negligence, but that memorandum is

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mostly a regurgitation of Plaintiffs’ memorandum in opposition
(Rec.

Doc.

129)

to

the

Tilbury’s

motion

for

partial

summary

judgment (Rec. Doc. 119). In opposition, Plaintiffs complain the
depositions were confusing and again allege a duty to turn over
certain documents imposed by La. R.S. § 9:1124.107. They also argue
Movants had “constructive knowledge” of defects and managerial
affairs at the condominium complex. Finally, Plaintiffs cite the
declaration of Malcom M. Kelso (“Declaration”) as support for a
factual basis for their negligence claim.
Movants argue that § 1124.107 is inapplicable to Movants and
that the law provides a limited remedy which has been waived. Also,
that the declaration should be stricken because Mr. Kelso (Kate
Novak’s father) has no personal knowledge of Robinson’s knowledge.
Mr. Kelso only became involved months after the purchase. They
argue that Fed, R. Civ. P. 56(c)(4) renders this declaration
inadmissible and it therefore must be stricken from the record. In
their opposition (Rec. Doc. 155) Plaintiffs return that Mr. Kelso’s
knowledge is “based upon his detailed investigation into relevant
matters

after

the

purchase.”

Therefore,

they

argue

that

the

information declared to is within his “sphere of responsibility.”
Plaintiffs point to the fact that Kelso communicated with the home
owner’s association’s attorney to support this proposition.

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Movants argue that that the civil conspiracy allegation is
subject to summary judgment because Plaintiffs admit no factual
basis for that charge as well. Additionally, Plaintiffs rests their
civil conspiracy cause of action on the same state law provision:
Robinson failed to obtain or provide Plaintiffs with
documents described in La. R.S. § 9:1124.107. This
failure was intentional, and aimed at preventing
Plaintiffs from becoming aware of the state of affairs
at
[the
condo
complex],
including
the
improper
management, deferred maintenance to the common areas and
structure, and the failure of the [board] to account for
funds—all of which are violations of the By-laws and the
LCA.

Movants counter that because a civil conspiracy requires an
underlying agreement to commit a tortious act or illegal act the
claim must be dismissed. Movants could not have illicitly conspired
to circumvent a law they claim is inapplicable to them.
LEGAL STANDARD
Summary

judgment

is

appropriate

when

the

pleadings,

the

discovery, and any affidavits show that “there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a); see also
Celotex

Corp.

v.

Catrett,

477

U.S.

317,

322–23

(1986).

All

reasonable inferences are drawn in favor of the nonmoving party,
but “unsupported allegations or affidavits setting forth ‘ultimate
or conclusory facts and conclusions of law’ are insufficient to
either support or defeat a motion for summary judgment.” Galindo

5

v. Precision Am. Corp., 754 F.2d 1212, 1216 (5th Cir. 1985); Little
v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994).
DISCUSSION
I.
The Court notes at the outset that a separate Motion to Strike
is unnecessary, as a “party may simply object to the material” in
their motion for summary judgment. Cutting Underwater Techs. USA,
Inc. v. Eni U.S. Operating Co., 671 F.3d 512, 515 (5th Cir. 2012).
The Court will therefore treat Movants’ Motion to Strike as an
additional objection pursuant to Rule 56(c)(2). If a part of a
declaration

fails

to

comply

with

the

personal

knowledge

requirement, the Court will simply disregard that part. Akin v. QL Investments, Inc., 959 F.2d 521, 531 (5th Cir. 1992).
Plaintiffs

are

correct

that

“a

declaration

need

not

specifically state that it is based on personal knowledge;” however
the declaration must still “include enough factual support for a
court to determine that its averments were based upon the personal
knowledge of the declarant.” Gahagan v. U.S. Citizenship and Immig.
Services, 147 F. Supp. 3d 613, 621 (E.D. La. 2015). Applying this
standard, it is clear that Mr. Kelso’s conclusory allegation that
“Robinson

had

actual

or

constructive

knowledge

regarding

the

latent defects” is an insufficient basis to withstand summary
judgment. (Rec. Doc. 128-2 at 3). The allegation as to Movants’
“constructive knowledge” is an obvious “conclusion of law [that]
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cannot

be

utilized

on

a

summary-judgment

motion.”

Cutting

Underwater Techs. USA, Inc. v. Eni U.S. Operating Co., 671 F.3d
512, 515 (5th Cir. 2012) (quoting 10B CHARLES ALAN WRIGHT & ARTHUR
R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 2738 (3d ed. 2004).
The allegation as to Movants’ “actual knowledge” by Mr. Kelso
is just as unconvincing, but for the reason that it is clearly
mere speculation. This Court assumes for the purposes of this Order
that the “post-sale investigation” by Mr. Kelso falls within his
“sphere of responsibility.” See DIRECTV, Inc. v. Budden, 420 F.3d
521, 530 (5th Cir. 2005). But, the problem is not that Mr. Kelso
cannot claim his knowledge is “personal”; it is that he has no
basis at all to assert that Movants failed to relay information
that they possessed. Nothing in the Plaintiffs’ exhibits suggest
that Mr. Kelso has any more of an intimate knowledge of the
Movants’ knowledge or behavior than Plaintiffs themselves and
Plaintiffs candidly admit they have no basis for believing Movants
withheld
regarding

information.
what

the

Thus,

Movants

these
knew

assertions

or

may

have

by

Mr.

known

Kelso

must

be

disregarded by this Court.
II.
However,

even

if

Plaintiffs

cannot

show

that

Movants

possessed information that they failed to turn over, Plaintiffs
could potentially survive summary judgment if Movants should have
known information and didn’t turn it over. In other words, the
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question

is

whether

Movants

were

under

a

duty

to

give

any

information to Plaintiffs and whether Movants failed to do so.
Plaintiffs say yes to both, and point to La. R.S. § 9:1124.107.
But,

§

1124.107

is

not

applicable

to

the

Movants.

That

law

provides:
In the event of a resale of a unit by a unit owner other
than a declarant, the unit owner shall furnish to a
purchaser before execution of any contract to purchase
a unit, or otherwise before conveyance, a copy of the
declaration other than plats and plans, the articles of
incorporation or documents creating the association, the
bylaws, and a certificate . . . .
La. R.S. § 9:1124.107(A) (emphasis added). By its own terms, any
duty created by the provision is imposed on the seller and not the
purchaser’s real estate agent. Therefore, that law cannot be the
basis for a claim of conspiracy or negligence against Movants for
failing to turn over information.
Furthermore, the realtor’s basic “duty to relay accurate
information about the property,” Cousins v. Realty Ventures, Inc.,
No. 01–1223. (La. App. 5th Cir. 1/14/03), 844 So. 2d 860, 869, is
little more than a duty to pass on the information it actually
possesses. See Braydon v. Melancon, No. 83-1407 (La. App. 1st Cir.
12/28/84), 462 So. 2d 262, 263 (finding no duty breached where
realtor informed buyers that property had not flooded, when it in
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fact had, because realtor was informed by sellers it had not
flooded and realtor had no independent knowledge of flooding). As
found in the previous section, Plaintiffs have failed to show with
any credible basis that Movants withheld any information they
possessed. Therefore, it is clear that there being no material
facts in dispute, summary judgment is appropriate.
CONCLUSION
Accordingly,
IT IS HEREBY ORDERED that Movants’ Motion for Summary Judgment
(Rec. Doc. 126) is GRANTED.
IT IS HEREBY FURTHER ORDERED that Movants’ Motion to Strike
Unsworn Declaration of Malcom M. Kelso (Rec. Doc. 131) and Movants’
Motion to Reset Hearing (Rec. Doc. 173) are DENIED AS MOOT.

New Orleans, Louisiana this 26th day of June, 2018.

____________________________
CARL J. BARBIER
UNITED STATES DISTRICT JUDGE

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