Case: 15-30031      Document: 00513209556         Page: 1    Date Filed: 09/28/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT     United States Court of Appeals
                                                       Fifth Circuit

                                                                                  FILED
                                                                            September 28, 2015
                                      No. 15-30031
                                                                               Lyle W. Cayce
                                                                                    Clerk

BRITNEY N. JONES, individually and as tutor of minor children M.E.P. and
M.N.P.,

              Plaintiff - Appellant

v.

WELLS FARGO BANK, N.A.; COX MANAGEMENT SERVICES,

              Defendants - Appellees


                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 5:13-CV-2513


Before REAVLEY, ELROD, and HAYNES, Circuit Judges.
PER CURIAM*:
       Plaintiff Britney N. Jones filed suit against Wells Fargo Bank, N.A.,
(“Wells Fargo”) and Cox Management Services (“Cox”), asserting Louisiana
state law claims of fraud and redhibition in relation to her purchase of a home
from Wells Fargo. Jones appeals the district court’s orders granting Wells
Fargo’s motion to dismiss and Cox’s motion for summary judgment. For the


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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reasons that follow, we REVERSE the court’s judgment of dismissal as to Wells
Fargo, AFFIRM the summary judgment in favor of Cox, and REMAND for
further proceedings consistent with this opinion.
                                I. Background
      In September 2010, Wells Fargo acquired 1425 Magnolia Ridge in
Bossier City, Louisiana, (the “Residence”) through a foreclosure sale.        In
December 2011, Wells Fargo sold the Residence to Jones and her husband. In
July 2013, after Jones and her husband divorced, Jones filed suit against Wells
Fargo and Cox in Louisiana state court alleging state law claims of redhibition
and fraud in relation to Jones’s discovery of mold in the Residence. Wells Fargo
removed the action to federal district court, asserting diversity jurisdiction
pursuant to 28 U.S.C. § 1332.
      Jones’s complaint contains the following factual allegations related to
the concealment of mold in the Residence. “Defendants sold the Residence to
Plaintiff with full knowledge that the Residence had mold and other issues.”
“The mold in the Residence was due to a faulty hot water heater at the
Residence, about which Defendants had full knowledge prior to the sale.” In
January 2010, the Defendants “were provided with a mold remediation plan
for the Residence that recommended substantial work be performed in the
Residence to remediate the mold.” “[T]his work never was performed.” In
October 2010, the Defendants “were furnished with a second mold remediation
plan for the Residence[,] which also recommended extensive mold remediation
work at the Residence.” “[T]his work never was performed.” “Defendants
performed certain cosmetic work and air scrubbing in an effort to conceal the
mold problem in the Residence from Plaintiff so that the Residence could be
sold to Plaintiff without her knowledge of the mold problem.” “Defendants
purposely failed to notify or otherwise inform Plaintiff that the Residence had
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a mold problem.” “As a result, Plaintiff purchased the Residence under the
mistaken belief that the Residence did not have any mold-related issues . . . .”
      Jones’s complaint also alleges the following facts related to her discovery
of mold in the Residence. Subsequent to her purchase of the Residence, her
children developed respiratory and other health issues.          In June 2013,
“Plaintiff obtained an environmental assessment of the Residence showing
extensive mold growth in the Residence in the wall cavities.” “Investigation of
the Residence following discovery of mold showed active attempts of
concealment[,] which . . . were perpetuated by the Defendants in an effort to
sell the Residence to Plaintiff without her discovery of the mold issues.”
“Removal of the mold from the Residence will require substantial cost and
expense, including removal of kitchen cabinets and surfaces, stove, oven,
numerous walls within the Residence, insulation and other materials.” The
presence of mold “diminishes the Residence’s usefulness or its value so that
Plaintiff only would have purchased the Residence at a much lower price than
she paid.”
      The complaint states that Wells Fargo hired Cox to provide “certain
management services” in connection with the Residence.           Evidence later
adduced in this case demonstrated that, during the time Wells Fargo owned
the property, it hired Cox to perform repairs and other work on the Residence
in relation to the water and mold damage. Cox subcontracted out the work to
another entity. Cox had no communication or interaction with Jones or her
husband.
      Wells Fargo filed a motion to dismiss pursuant to Federal Rule of Civil
Procedure 12(b)(6), attaching the purchase agreement for the Residence that
was signed by Jones’s ex-husband and a representative of Wells Fargo. The
agreement included a waiver stating that the buyer purchased the Residence
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in an as-is condition without representations or warranties of any kind (the
“As-Is Waiver”). The agreement also included a disclosure and waiver related
to mold (the “Mold Waiver”), which read as follows:
      Buyer is hereby advised that mold and/or other microscopic
      organisms may exist at the property known as 1425 MAGNOLIA
      RIDGE, BOSSIER CITY, LA, 71112. . . . Buyer acknowledges and
      agrees to accept full responsibility/risk for any matters that may
      result from microscopic organisms and/or mold and to hold
      harmless, release, and indemnify Seller and Seller’s managing
      agents from any liability/recourse/damages (financial or
      otherwise). Buyer understands that Seller has taken no action to
      remediate mold. . . . The purpose of this disclaimer is to put Buyers
      on notice to conduct their own due diligence regarding this matter
      using appropriate, qualified experts. . . .
The district court granted Wells Fargo’s motion to dismiss primarily on the
basis that the Mold Waiver negated any allegation that Wells Fargo failed to
disclose the presence of mold or that Jones relied on an understanding that the
Residence did not contain mold.
      Thereafter, Cox filed a motion for summary judgment pursuant to
Federal Rule of Civil Procedure 56. The district court granted the motion for
the same reasons it dismissed the claims against Wells Fargo.
      The district court entered final judgment, and Jones timely appealed.
                                  II. Discussion
A. Wells Fargo’s Motion to Dismiss
      We review de novo the district court’s ruling on a motion to dismiss for
failure to state a claim. Highland Capital Mgmt., L.P. v. Bank of Am., N.A.,

, 205 (5th Cir. 2012). In doing so, we accept all well-pleaded
factual allegations as true and view them in the light most favorable to the
plaintiff. 

must contain a short and plain statement of the
claim showing that the pleader is entitled to relief,” which need not include

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“detailed factual allegations,” but must include “more than an unadorned, the-
defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 

,
677–78 (2009) (citations and internal quotation marks omitted). A plaintiff
must plead “sufficient factual matter, accepted as true, to ‘state a claim to relief
that is plausible on its face.’” 

(quoting Bell Atl. Corp. v. Twombly,

, 570 (2007)). The complaint must “plead[] factual content that
allows the court to draw the reasonable inference that the defendant is liable
for the misconduct alleged.” 

is insufficient if it offers only
“labels and conclusions” or “a formulaic recitation of the elements of a cause of
action.” 

550 U.S. at 555).
      1. Redhibition
      Under Louisiana law, a “seller warrants the buyer against redhibitory
defects, or vices, in the thing sold.” LA. CIV. CODE art. 2520. A defect is
redhibitory when either “it renders the thing useless, or its use so inconvenient
that it must be presumed that a buyer would not have bought the thing had he
known of the defect” or “it diminishes [the thing’s] usefulness or its value so
that it must be presumed that a buyer would still have bought it but for a lesser
price.” 

who knows that the thing he sells has a defect but omits
to declare it . . . is liable to the buyer . . . .” LA. CIV. CODE art. 2545.
      Defects that a buyer knew of or that were apparent are excluded from
the warranty of redhibition. See LA. CIV. CODE. art. 2521; Amend v. McCabe,

, 1188 (La. 1995). A defect is apparent if “a reasonably prudent
buyer, acting under similar circumstances, would discover it through a simple
inspection of the property.” 

. When a defect “is
concealed within [a] home’s structure (e.g., walls and floors) it is considered
unapparent because it is not discoverable by a simple inspection.” Id.; see also
Jessup v. Ketchings, 

, 345 (5th Cir. 2007) (citing Amend, 

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                                  No. 15-30031
2d at 1188); McGough v. Oakwood Mobile Homes, Inc., 

, 801 (La.
App. 2 Cir. 2000) (“The buyer is under no obligation . . . to inspect with
expertise or to deface the thing purchased while inspecting it.”).
      Jones’s complaint contains factual allegations that the home she
purchased from Wells Fargo had a redhibitory defect as defined in LA. CIV.
CODE art. 2520: it states that at the time of purchase, the Residence had mold
growth so extensive that it caused her family illness and would require
extensive remediation efforts, as well as that this defect diminished the
Residence’s usefulness or value to the extent that Jones would only have
purchased it at a much lower price. The complaint contains factual allegations
that, at the time of purchase, Jones did not know of the defect, nor was the
defect apparent since the mold growth was in the wall cavities and there had
been active attempts to conceal the mold growth. See 

(citing 

).         The complaint also contains factual
allegations that Wells Fargo is liable for the redhibitory defect because it knew
of the defect but omitted to declare it: (1) Wells Fargo had full knowledge of the
mold growth and was provided two mold remediation plans for the property;
and (2) Wells Fargo actively concealed the mold growth and did not disclose
the mold growth. See LA. CIV. CODE art. 2545.
      Based on these factual allegations, we hold that Jones’s complaint states
a claim for redhibition “that is plausible on its face.” 

(quoting 

).
      2. Fraud
      Under Louisiana law, “[f]raud is 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. Fraud may also result
from silence or inaction.” LA. CIV. CODE art. 1953. The elements of an action
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for fraud are: “(1) a misrepresentation, suppression, or omission of true
information; (2) the intent to obtain an unjust advantage or to cause damage
or inconvenience to another; and (3) the error induced by a fraudulent act must
relate to a circumstance substantially influencing the victim’s consent to (a
cause of) the contract.” Shelton v. Standard/700 Assocs., 

, 64 (La.
2001). Similar to redhibition, fraud is not actionable “when the party against
whom the fraud was directed could have ascertained the truth without
difficulty, inconvenience, or special skill.” LA. CIV. CODE art. 1954.
      Jones’s complaint contains factual allegations that at the time of the
sale, Wells Fargo knew of a defect and omitted and suppressed information of
that defect, thus satisfying the first element of fraud: (1) it states that Wells
Fargo was made fully aware of the mold growth; and (2) it states that Wells
Fargo actively concealed the mold growth and did not disclose the mold growth.
As to the second element, the complaint alleges that Wells Fargo acted with
the intent to obtain an unjust advantage. This allegation is supported by the
fact that Wells Fargo was provided with two remediation plans for the mold
growth, but instead of remediating the mold growth as stated in those plans,
Wells Fargo performed cosmetic work to conceal the mold so that the Residence
could be sold without a buyer discovering the mold. As to the third element,
the complaint contains allegations that Jones purchased the Residence under
the mistaken belief that the Residence “did not have any mold-related issues,”
and that, if she had known of the extensive mold growth, she would have only
purchased the Residence at a much lower price. See Sun Drilling Prods. Corp.
v. Rayborn, 

, 1153 (La. App. 4 Cir. 2001) (explaining that the
third element requires the plaintiff to “at least be able to say that had he
known the truth, he would not have acted as he did to his detriment”). Finally,
the facts in the complaint demonstrate that Jones could not “have ascertained
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the truth without difficulty, inconvenience, or special skill” because the mold
was within the walls and had been actively concealed by Wells Fargo. LA. CIV.
CODE art. 1954.
      Accordingly, the complaint contains “sufficient factual matter, accepted
as true, to state a claim” for fraud “that is plausible on its face.” 

(citation and internal quotation marks omitted).
      3. The As-Is and Mold Waivers
      Wells Fargo contends that the As-Is and Mold Waivers attached to its
motion to dismiss demonstrate that Jones failed to state claims for redhibition
and fraud. The district court agreed with Wells Fargo and dismissed Jones’s
claims on this basis.
      On appeal, Jones argues that it was error for the district court, in
deciding a motion to dismiss pursuant to Rule 12(b)(6), to go beyond her
complaint and consider these documents. In deciding a motion to dismiss
under Rule 12(b)(6), a court generally may only consider those documents that
are part of the pleadings. “Documents that a defendant attaches to a motion
to dismiss are considered part of the pleadings if they are referred to in the
plaintiff’s complaint and are central to her claim.” Causey v. Sewell Cadillac-
Chevrolet, Inc., 

, 288 (5th Cir. 2004). Wells Fargo argues that the
district court properly considered the As-Is and Mold Waivers pursuant to this
rule because the documents were part of the contract to purchase the Residence
and are central to Jones’s claim. However, these documents are not explicitly
referred to in Jones’s complaint and her claims of redhibition and fraud do not
directly reference the contract to purchase the Residence.
      We find it unnecessary to resolve whether the district court properly
considered the waivers because, if the facts as alleged by Jones are ultimately


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proven, the waivers do not negate Jones’s claims under Louisiana law. 1
Accordingly, we pretermit this issue and hold that Jones stated plausible
claims of redhibition and fraud. See 

.
       First, the Mold Waiver states only that mold “may exist at the property.”
This acknowledgement of the possibility of mold does not disclose the true
nature of the defect as Jones alleges it was known by Wells Fargo—that
extensive mold growth did exist at the property. See Frey v. Walker, 

, 891–92 (La. App. 5 Cir. 2001) (concluding that partial disclosures were
inadequate to disclose the full nature of defects); cf. 

(holding that a disclosure that the property “had termites” and that “[v]isible
evidence of wood destroying insects was observed” was sufficient to make the
presence of termite damage apparent).
       Second, it is well-settled under Louisiana law that a seller may not fail
to disclose a defect or actively conceal it and then employ a waiver to contract
out of its obligation to disclose that defect. See 

(explaining that “fraud in the inducement of a contract cannot be waived,” and
that “although the warranty against redhibitory defects may be excluded or
limited, a seller cannot contract against his own fraud and relieve himself of
liability to fraudulently induced buyers”); Schmuck v. Menees, 

,
281 (La. App. 5 Cir. 2013) (“[A] seller with knowledge of a redhibitory defect,
who, rather than informing the buyer of the defect opts to obtain a waiver of
the warranty implied by law, commits fraud, which vitiates the waiver because
it is not made in good faith.” (citation and internal quotation marks omitted)).



       1Jones also argues that the district court erred by granting a motion to dismiss under
Rule 12(b)(6) based on a weighing of the evidence. We need not address this argument
because, in conducting a de novo review, we conclude that Jones’s complaint states a claim
upon which relief can be granted.
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Jones’s complaint contains factual allegations that Wells Fargo was fully
aware of the mold growth in the Residence, took steps to actively conceal the
mold growth, and then failed to disclose that information and those efforts.
Under these facts, the As-Is and Mold Waivers are unenforceable and
ineffectual to preclude Jones’s redhibition and fraud claims. See 

; 

. Accordingly, we REVERSE the judgment
of dismissal granted in favor of Wells Fargo and REMAND for further
proceedings consistent herewith.
B. Cox’s Motion for Summary Judgment
      We review the district court’s grant of summary judgment de novo,
construing all facts and inferences in the light most favorable to the nonmoving
party. See Hernandez v. Velasquez, 

, 560 (5th Cir. 2008). We may
affirm the district court’s grant of summary judgment on any ground supported
by the record and presented to the district court. 

is
appropriate when “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).
      Cox moved for summary judgment on multiple grounds. Among other
things, it argued that Jones could not maintain claims for fraud or redhibition
against Cox based on the following evidence: (1) Cox was hired by Wells Fargo
to perform work on the Residence when Wells Fargo owned the Residence; (2)
Cox was not the seller of the Residence and was not party to the transaction
by which Wells Fargo sold the Residence to Jones; (3) Cox did not enter into
any agreement or transaction with Jones or her husband; and (4) Cox had no
communication or interaction with Jones or her husband.
      Jones did not dispute these facts and she did not offer evidence in
response to Cox’s motion for summary judgment. Indeed, in her “Statement of
Contested Material Facts,” Jones admitted most of these facts. There is thus
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                                 No. 15-30031
no dispute of material fact. In light of the elements of fraud and redhibition as
delineated above, we hold that Cox was entitled to judgment as a matter of
law. Jones may not maintain a redhibition claim against Cox because the
evidence makes clear that Cox was not the seller of the Residence and was not
involved in the transaction at issue. See LA. CIV. CODE art. 2520 (“The seller
warrants the buyer against redhibitory defects, or vices, in the thing sold.”);
Duplechin v. Adams, 

, 84 (La. App. 1 Cir. 1995) (“The redhibitory
action is between seller and buyer, and without such a relationship, the action
cannot be maintained.”).    Likewise, Jones cannot maintain a fraud claim
against Cox because there is no evidence that Cox made a misrepresentation,
suppression, or omission with an intent to defraud: the evidence demonstrates
Cox was not a party to the transaction at issue, did not otherwise interact or
communicate with Jones, and performed the work for the owner of the
Residence at the time, Wells Fargo. See 

. Accordingly,
summary judgment was properly granted in favor of Cox.
      We AFFIRM the district court’s judgment as to Cox; we REVERSE and
REMAND the judgment as to Wells Fargo.




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