received seymour skiver response which i had no idea to the extent that i had been lied to deceived into fraud since i personally met and dealt with steve sue late seymour's president i believe you we would be honorable w respond in a reasonable manner accordingly i did everything stick if what you're talking about is their only brief note of course not ok what are you talking about i'm talking about what they did  certainly there should be a situation in which a judge or africa says hey guys give me an explanation the first explanation that they've given is in this court and they don't  why well they did so that's basically my argument i'm happy to answer questions and i have i have more detail as to every time i talk to people i've got a call a text message i left word i thought this guy was all going to france and so it was just baffled as to why he didn't do it so i did circumstances i think it please the court michael mohun on behalf of lewis kerner and i will mr kerns dealing with the default judgment issues i'm here to talk about the summary judgment side of this and the summary judgment errors in the case are really procedural in nature there was first the lack of notice of the grounds upon which the district court would grant the summary judgment and then there was also a failure here to standards in the course of ruling on the evidence and considering everything and that included accepting and failing to accept  evidence is true construing evidence against the nonmoving credibility terminations a number of issues but for initial purposes see a more chose not to brief any of these issues in their their brief to this court they don't address  any of the let me just point out i i thought the tone of the brief was unusual to put it kindly but an apple e is not even required to file a brief and in a in our court and i can understand that honor but i guess our position would be to the extent that they have any objections they have waive them by not briefing them before this court while it is true that they don't have tat waves something you don't have to do other you agreed your honor that perhaps they shouldn't have the benefit of oral argument on those  turning in the lack of notice there's a number of claims that were at issue and taking them one at a time there's a there's a fraud claim in connection with the purchase of the roof in two thousand and five two thousand and six the only ground see a more sought the dismissal of that claim was that it had prescribed which wasn't reached by the district court specifically they say they didn't get to that then there were detrimental reliance and negligence claims that related to work that was done in november and twelve they sought the dismissal of those claims on the basis of perenchio and pursuant to revise statute nine coal and twenty seven seventy two and the problem with that is those claims were within five years so they would not be p and that was the only basis they basis on which they sought the dismissal of those claims they didn't argue that the relationship between them and brian bull lask as the contractor was a basis for dismissal the assurances were too vague they didn't make a quote promise to mr kerner or that his reliance on any assertions was unreasonable and those were all grounds relied upon by the district court in dismissing the claims and we would submit that that was error now we agree that it can be harmless if the subsequently produced evidence doesn't create a genuine issue of material fact here though it did especially when combined with the initial evidence submitted in opposition to the summary judgment when i was reading your brief the first question that sprang into my mind is exactly what was because i can't tell i couldn't tell maybe i just overlooked something whether the fraud was that this was not a quote traditional slate roof said in his declaration which is a record document fourteen forty seven seymour intentionally misrepresented slate two point zero was a new and improved version of a traditional slate roof which still possessed all the attributes of a traditional slate roof but was better in every meaningful way what they didn't say was that this roof is a decorative slate facade over a membrane a membrane that's prone to degradation puncture anything else to where the slates themselves provide no protection it's the membrane and now it is true that mr kerner knew that there was an underlayment but he didn't realize that that was the only protection for the house what he understood was that the underlayment was for lack of a better way of putting it the we have not disputed that mr kerner knew that there was an underling that was utilized with this but it wasn't felt he knew that it wasn't felt but that was not the basis of the claim the basis of the claim is you're using a different underlayment but it's still not the slates are providing no protection it's not a slate roof in the traditional sense it's excuse me off site it is real slate but where the slates themselves provide no protection whereas on a traditional slate roof the slates themselves protect the house from i mean if you can if you have a regular shingles on a roof you are going there because you have an underlayment underlayment of some sort on a regular roof that the shingles provide no protection whatsoever that can't be right well here it's always the roof has multiple components right which is to serve a purpose and i think with a traditional slate roof the slates themselves are overlapped in the protecting the where is it undisputed in the record that the underlayment is the basis for the roof protection believe mr kerner said that in his declaration that was his appreciation of it ok just to be more specific judge i can look  so moving on beyond the fraud in connection with the initial purchase of the roof there were claims relating to subsequent work that was done on the roof and this work would began in two thousand and eleven and was completed in two thousand and twelve and two thousand and eleven mr kerner had an inspection report from a roofing company called guarantee which he provided to see him or and said hey there's problems with the roof you need to come out and fix it see him or sent someone out there who inspected it and assured mr kerner in two thousand and seven they would take care of everything fast forward through two thousand and twelve mr connor still having problems with his roof then we get to november of two thousand and twelve where a final effort is made between mr kerner and see him or to resolve any was the last gasp missed of alaska's brian blessed as was provided to mr kerner by a gentleman named gary clocking who worked for c m m after mr carter had complained to mr clocky about continuing issues with seymour was not responding to mr carter so mr carter said fine i'll just make a deal with your guy on the side and get this taken care of well then see him or does come and in november of two thousand and twelve i believe was november first and twelve steve souly the president of seymour comes out with mr of alaska is with mr kerner and they devise a scope of work to address the issues that mr connor was having with his roof so the contract the contract that was by judge africa in his initial order reasons was never signed this was mr kerner telling see him or i'm going to go make a deal with your guy because y'all aren't responding to me and then i will turn around and file suit against you then see him or comes out they devise a scope of work that will supposedly address all the issues that it was having and in the course of doing this see a more provided the scope of work that's document twenty three fifty four in the record  to the work as the c m our work and e mail correspondence mr kirchner that is twenty three fifty seven of the record c m or supervise the contractors work that's twenty three fifty eight in the record is all that from you say that are all those oh oh no your honor those are all email correspondence back and forth between c and more people in mr kerner during the pendency of these november repairs there's a discussion in there about ime i don't think there are a lot of facts here and we can't get into them all right now but we do have the record but i will say the rest of my argument for both thank you all right to thank you your client's money and doing a point by point refutation of these if you didn't want to spend your client's money doing a point by point refutation of their claims but on the other hand you don't need to be roof after katrina in two thousand and five in two thousand and six mr kerner subsequently expressed concerns with the quality of workmanship were some issues with the roof seymour sought to address that two thousand and six two thousand seven two thousand and eleven ultimately mr kerner component complain about some other issues after hurricane isaac seymour came out looked at it and said this is due to hurricane isaac there were some further discussion a default was entered because c m r did not respond to the suit and as seamers steve sue lay stated in his affidavit to the court in connection with the motion to set aside the default that was because of several issues one was seymour was not listed in the caption of the suit it was captions it was honor versus vigilant insurance company a second was the papers themselves were addressed to a different c m or entity and the third was  been repeatedly contacting mr c lay about his likely the company's likely involvement it's a defendant why didn't the district court abused his discretion under the authority of that chinese drywall case well two things number one it's a totality of the circumstances type of decision you don't just look at how many times did someone tried to contact you i think the record shows that there was actually one brief telephone conversation by cell phone otherwise you've got papers coming into an office and papers and text messages and emails coming off as a offices all the time and get mistrusted all the time so i think the district court looked at what mr simply said and what mr turner said and found that mr sewell a had a viable reason for not responding to the lawsuit and it is an abuse of discretion standard chinese dry wall affirmed a the best handling of the matter that's for sure i think the district court said it was not wise but it wasn't a deliberately neglectful fam architecture it's controlled by still a it's another company yes they do business in multiple states so you know they get a lot of paper into the office basically and if the you know if you have something directed to a lawsuit against another party it's not going to get the same attention that it gets once directed to idea that the company gets a lot of emails this doesn't ring convincing to me mr c they knew that mr kearney was probably knew about this route and there's always something that goes into the abuse of discretion but i think you may be not given the fairest characterization of how we would look at these contacts between people who knew each other and knew what the dispute was about well to say that they knew each other might be accurate but he also knew hundreds of other companies customers so i don't i'm not sure that there's really this close personal relationship that's alleged here that's certainly not supported by the papers and he didn't exist any more i would say  time he was receiving all these these notices in two thousand and sixteen it was five years after at least four years after he had done they had had the repairs in two thousand and eleven twelve right that's right and normally that would be outside limit most limitations in louisiana or perempuan that's right and i think you know there's also a lot of cases that support the notion that that five year period is not interrupted by repairers or assurances of repairs as well and that's cited in the district court well that's ok well i mean i think the main point is we're talking about over ten years after the roof replacement they've gone out there they've tried to repair it and they're still getting bombarded by requests from this this one customer and they still you know thought they had resolved this in two thousand and twelve when he said i've got this additional damage and they sent out the independent contractor because i think well we don't want litigation but we do think it's tribute to hurricane isaac anything we did what's he suing his insurance company over nonpayment for hurricane isaac i believe  assuming his insurance company over well it really never got settled flushed out completely i think they took what they were heading to a trial date in that on that claim with judge effort and affidavit that's right he wasn't opposed until after the affidavit but there are several things going on here number one mr turner had an opportunity to and did oppose the motion to set aside the default when it was filed in and seventeen well and if they affidavit i mean did he tell the judge at that time that he thought the affidavit was false i don't believe you did on the basis that he had had all these communications with so leg i don't believe you did your o deposition contradicts that affidavit absolutely not what mr kerner is trying to say is you got these papers that named c m r as the defendant in the papers nothing he said was false now the other thing that happened mr kerner waited until i did not file anything after that aug twenty seventeen deposition did not use the deposition in opposing summary judgment only filed this protest about the motion to set aside in these allegedly false statements in his motion to reconsider after the court granted s over twenty seventeen d damages what his claims really involve our alleged faulty installation of the roof what's wrong if he gets the wrong quote type of roof another aspect of the legal issue is why did it take him a loving years to figure that out and another aspect which is the basis for our request for a firm on some alternate grounds as he filed suit on the fraud claims too late even if you give him the benefit of the doubt on when he corrections so it came up very late in the game it wasn't part of any of the original complaint and what it pertains to see says these guys came in and misled me about what type of roof they were going to sell so what comes up in the affidavits we submit that they came out and showed him samples physical samples that they provided him with a brochure that they visited him multiple times he went into his depots eric hunter the salesman who visited him membrane underneath that sounds a little more and understand why that would be that excepted that these tunnels are actually not water repellent and are not situated on the roof in such a way to keep the water from getting beneath tom i don't think that's correct your honor there's no expert testimony either way on that point in the record but what the actual fact of the matter is these are thinner slate tiles which makes for a lighter weight we've and an easier installation i was in the contract that's right your honor that was right there in the contract slate two point zero that's the whole motion but it and it has a synthetic polymer membrane instead of an under one every roof has a membrane right that's right here on it or whatever covering is on top of it and it to me personally the notion of thinner slate tiles is still superior to the type of asphalt shingles you may have been referring to earlier why did it keep leaking like that the installation that was faulty i think it's the age of the house it's possible there were some insulation issues yes we didn't deny that i made to the house amount or i'm sorry i mean the age of the house look at the expert testimony that was provided from the plaintiff from lewis really is the source of any alleged damages it's the installation problems with me m r did the installation yes in two thousand and five and two thousand zero point zero yeah that's the whole point of the case yes so what damages flow from getting the quote wrong type of roof or a static purposes or you know there's not a claim anywhere in this case that because of the type of roof that was installed he had water damage it's all related to insulation issues there's just this claim that i spent over a million dollars to rehabilitate my house i got sold the wrong type of roof and yet and i do not mean to be snarky and yet i could not discern that for eleven years so it's it's in an interview lated set of issues but the the nature of the roof doesn't cause the type of damages alleged here at all and i think that's part of the problem that the district court had for years i mean there is this prescription issue that the just record and reach but there's also an issue with and i think this gets to some of the issues that mr mohun sought to raise he said there's a problem with notice there's not because seymour came in and moved for summary judgment saying there's nothing to support this fraud claim it that the record was devoid of factual support for any fraud claim well then what do you do i mean what do you do about this e mail and i mean that to get past limitations on fraud they have to connect two thousand and eleven to two thousand and twelve and to do that they have employees statement i didn't tell him about all of the scope of the work because he's a sneaky lawyer and how do we construe that in the summary judgment context i think you can stare at the same way that the district court did he said the employee may have said i didn't tell him about this at the time but that doesn't show that they never told him about that at all nor does it show that they covered anything up but just says i i'm going back to the home office before i discuss things further with this guy because he's a lawyer and probably also because he may have known that he'd had multiple claims for repairs previously you know to try to base an entire fraud claim on one e mail saying i didn't tell this guy about x at this particular time you know there's nothing that flows from that at all and in fact i also admit that he told mr connor that they would take care of the issue he didn't detail what they would do to repair it and they did come out there in their job t the key point here that's when they said look enough is enough and turner comes but mr connor comes back and says enough isn't enough i'm going to sue you if you don't fix this and they as your honor said they kicked in some money and paid this other independent contractor to come out there now did they go out there and look at it to speak make sure he done what he said he would yes but that that itself does not give rise to a claim for fraud either i should know this but i assume c m r r bore the cost of the two thousand and eleven repairs yes or so that was consider warranty work i don't know if that generally yes i don't know if they formally considered it more and john have it it's not in the e mails or correspondence as to that no but then they also did some additional work at mr carter's request that was unrelated to the repairs so he had them coming out and doing other things as well so there's some warranty work some non warranty work did samar do work besides the roof but was so you you keep saying throughout your argument that c m are and so on this i mean he was and you didn't doc and you did not argue independent contractor to the district court did you i believe we did your honor we stated that he was   in the district court involving these various timeframes and various alleged types of claims that a lot of them were not necessarily addressed in you know copious detail but that that assertion was made at one point in the summary judgment brief all right so i can fact i think we were criticized for raising it in a footnote specifically but ok thank you thank you  an extension i then then they said to begin on december the fourteenth or on january the nights i called him on his cell phone we had a bag with it because i had a cell phone from two thousand and twelve was a message let me ask you question mr kerner when they filed to get relief from the from the from the default judgment why didn't you say at that time that this is a false affidavit and here's why i was i supposed to know well excuse me but your claim was his claim was i didn't take this seriously and it was way beyond the time and you could have said he should he had to have known it was serious because here all the contacts i had with you that you did oh yes i had emails everything i went through the whole thing and you and you filed all that response before they had to answer before the eight days was up he does not thank you very much i appreciate very much the honor of speaking before you the claim precision of the contractor flawed if the truth had been no we never would have contracted with see him or in the first place and none of the damages suffered by mr kerner would have been incurred and that claim was clearly pled mr able to take his deposition so the only affidavit was from souffle who had no personal knowledge the another thing that mr perkins talked about was that there were too many claims and it was difficult to address all of those in a summary judgment that alone shouldn't be grounds for summary judgment motions be granted without notice to the opposing party with an opportunity to respond on the independent contractor argument the only reference to it in the entire br entire summary judgment filed by them was in a footnote where they noted that he was an independent he was a contractor that mr kerner dealt with it was never urge it's a dismiss as a basis for dismissal there was no  discussion of operational control or any of the other issues that the district court went into with in granting relief or see a more and as far as them saying in their brief that there was nothing to support a fraud claim as far as the claim on the wrong type of roof they actually conceded that that claim would be subject to the exception in twenty seven seventy two each but then they only brief the dismissal of it on the basis of prescription not on the basis of any of the issues relied upon by the district court lastly there was some discussion about the two thousand and eleven repairs and that that was something separate from what happened in tw twelve and the district court noted this in its initial order and reasoned that if that wasn't a continuous repair project between eleven and twelve then any claims relating to two thousand eleven would be peremptory but if gary clocky the one who sent the sneaky lawyer email had indeed misrepresented something to mr kerner and deceived him fraudulent lee that would certainly be an exceptionally exact fraud to have discovery they just came out and man up and started hammering there's internal documentation the trio's what they were doing but that wasn't given to mr kerner what was represented to mr kerner was we have this inspection report and we're going to fix everything it and that's what he believed and one of the things that he raised to be i should say i mean on what basis it's one thing to say we're going to fix everything in it but we know that the old houses have recurring problems and so on so why does adam amount to a fraudulent representation because it would have to be fraud if they had no intention to fix everything that was up there but the easiest example that i've got your honor is one of the issues that was raised in the inspection report that was raised pacifically by mr connor was the lack of a trip edge which allows water to cascade off the side and he was told we were going to put a drip edge on there there was never a drip edge put on there there is not a drip edge to this day on one portion of the home so it is that not an old house issue that's simply if they didn't do it nine i believe it's rule nine your honor and i would say the fraudulent ten is that they were never going to do it they didn't do it it was blatantly there they said they were going to do it and they're later inspection reports that we didn't get to this area ok