OF JUDGMENT: 01/06/2017
HARRISON COUNTY CIRCUIT COURT, FIRST JUDICIAL DISTRICT HON.
LAWRENCE PAUL BOURGEOIS JR., TRIAL JUDGE.
ATTORNEY FOR APPELLANT: MICHAEL W. CROSBY.
ATTORNEYS FOR APPELLEES: FREDERICK N. SALVO III ADRIA H.
JETTON, SAMUEL D. GREGORY DONALD RAFFERTY.
Jenifer Bailey bought a house from Jeremiah ("Jay")
and Marie Schroeder. Bailey later sued the Schroeders,
alleging that they failed to disclose that there had once
been a meth lab in the house. The Schroeders filed a motion
for summary judgment, supported by affidavits and deposition
testimony, arguing that there was no genuine issue of
material fact and that they were entitled to judgment as a
matter of law because there was no evidence that there had
been a meth lab in the house-let alone evidence that they
knew or should have known about it. In response, Bailey
failed to produce any affidavits or other competent evidence
to show that there was a genuine issue of material fact.
Therefore, the circuit court granted the Schroeders'
motion for summary judgment. We affirm.
AND PROCEDURAL HISTORY
On November 23, 2010, Bailey filed a complaint in Harrison
County Circuit Court against the Schroeders, Re/Max Choice
Properties, and Re/Max LLC. In relevant part, the complaint
alleged as follows: Jay was a broker/agent and principal of
Re/Max Choice Properties, which was an agent of Re/Max LLC.
The Schroeders owned a rental house in Gulfport. In 2008,
they listed the house for sale with the Re/Max defendants. As
required by Mississippi law, the Schroeders completed and
signed a "Property Condition Disclosure Statement,"
which required them to answer the following question:
Are you aware of any problems which may exist with the
property by virtue of prior usages such as, but not limited
to, Methamphetamine Labs, Hazardous/Toxic waste disposal, the
presence of asbestos components, Lead-Based Paint,
Urea-Formaldehyde Insulation, Mold, Radon Gas, Underground
Tanks or any past industrial uses of the premises?
Schroeders checked "No" in response to this
question. In January 2009, Bailey bought the house from the
Schroeders. Bailey alleges that she later discovered that a
former occupant of the house had been arrested in 2007 for
operating a meth lab in the house. She further alleges that
the Schroeders knew or should have known about the meth lab.
Bailey's complaint asserted claims against the
Schroeders for fraud, negligent misrepresentation,
violation of statutory real estate disclosure requirements,
and breach of contract. The complaint also named Wells Fargo
Bank N.A. as an additional "plaintiff." The
complaint asserted that Wells Fargo was "a necessary and
indispensable party to this litigation" because it held
a deed of trust on the subject property.
The Schroeders answered the complaint, denying Bailey's
allegations that there had been a meth lab in the house or
that they knew or should have known about a meth lab. Wells
Fargo filed a "Response" to the complaint in which
it asserted that it was "not a Plaintiff and should be
treated as a Rule 19 Defendant." Wells Fargo stated that it
should be considered a Rule 19 defendant because it held a
deed of trust on the property and that its interest in the
case, if any, was limited to its rights associated with the
deed of trust. Wells Fargo stated it had "not joined in
[Bailey's] claims" but "reserve[d] the right to
seek leave . . . to join in [Bailey's] claims or assert
counter and/or cross claims at a later date."
The parties engaged in discovery during 2011 and 2012. In
October 2013, the clerk filed a motion to dismiss for failure
to prosecute, but Bailey opposed the motion and noticed
depositions, and the court administratively terminated the
clerk's motion. In July 2015, after another year of
inactivity, the clerk filed another motion to dismiss for
failure to prosecute, but Bailey filed a response to the
motion, and the motion was denied.
On November 4, 2016, Wells Fargo filed a "Motion to
Dismiss." Wells Fargo argued that it should be dismissed
from the case because no claims were asserted against it and
because it no longer held a deed of trust on the property
(and, thus, was no longer a necessary party). Bailey did not
file a response to Wells Fargo's motion.
On November 28, 2016, the Schroeders filed a motion for
summary judgment. They argued that they were entitled to
judgment as a matter of law because there was no evidence
that there had been a meth lab in the house or that they knew
or should have known about a meth lab. The motion was
supported by the Schroeders' affidavits and deposition
testimony from three of their former tenants-Barbara Broadus
and two of her children, Daniel and Tena Broadus. The
Broaduses testified that they lived in the house during the
time when Bailey alleged that a meth lab had been in
operation there. They all denied that there had been a meth
lab in the house. They testified that Barbara's son Tim
was only an occasional guest at the house but did not live
there permanently. They knew that Tim used drugs, but they
never saw him with drugs in the house. Barbara testified that
she would not have allowed Tim to bring drugs into the house.
On July 30, 2017, Barbara found a green plastic bottle in the
backyard that she thought was unusual and might be related to
drugs. After consulting a friend, she decided to call the
police, and the police arrested Tim at the house for
possession of precursors. The police found additional
precursors in Tim's car. Police searched the house but
only found some ordinary household batteries in the bedroom
where Tim was sleeping. Barbara, Daniel, and Tena all
testified that they never smelled any odors in the house or
saw anything else to suggest that Tim was making meth in the
house. They lived in the house for a year after Tim's
arrest and never experienced any health issues. Barbara
testified that she told Marie Schroeder that she had to have
Tim arrested. However, she did not tell the Schroeders that
Tim had been making meth at the house (because she did not
believe that he had been). In affidavits, Jay and Marie
Schroder both swore that no one ever told them that there was
a meth lab in the house.
On December 8, 2016, Bailey filed a response to the
Schroeders' motion. However, all but the first page of
the response is missing because of an apparent filing error
by Bailey. Bailey submitted three pages of exhibits with her
response. One page is what purports to be an August 6, 2007
memorandum to Jay and Marie Schroeder from Detective Aaron
Fore of the Gulfport Police Department. The memorandum
Mr. and Mrs. Schroeder,
This letter is to inform you of a Methamphetamine Lab that
was discovered in and about the residence located at [the
subject address]. On July 30, 2007, the Gulfport Police
Narcotics Unit seized numerous devices and precursors used in
the manufacture of Methamphetamine from the [subject] address
. . . . It is my duty to inform you of the hazards associated
with the manufacture of Methamphetamine. As a precautionary
measure, it would be advis[able] for a professional cleaning
and sterilization to be conducted of the residence to avoid
any sicknesses related to possible toxins remaining on the
premises. If you have any questions or concerns . . ., you
can contact me . . . .
A second page of Bailey's exhibits is what purports to be
a December 7, 2016 email from Bailey's attorney, Michael
Crosby, to Detective Fore. In the email, Crosby states:
This will confirm that I have this day confirmed with you
that . . . you delivered a written notice dated August, 6,
2007, to Mr. Jeremiah Schroeder, on said date, advising him
regarding a recommendation for professional cleaning
described in the letter . . . and notification of a meth lab
and hazards associated with methamphetamine found in and
about the residence on July 30, 2007.
record does not contain a response to Crosby's email or
anything else to show that Fore received Crosby's email.
Indeed, it is not clear that Crosby even sent the email to
Fore's email address. Rather, it ...