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Bays v. River Oaks

After converting defendants' motion to dismiss into a motion for summary judgment, the trial court failed to afford plaintiffs 30 days in which to respond to the new motion for summary judgment.

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On March 29, 1999, Joseph and Gina Bays sued River Oaks Construction, Inc., and Prudential Residential Services, L. P., after the home the Bayses purchased in February 1996 was found to have water damage allegedly caused by the faulty installation of synthetic stucco on the home’s exterior walls. The home, which was built by River Oaks, was certified for occupancy in January 1995 and sold to Troy and Susan Harris. Months later, the Harrises, with Prudential acting as their agent, sold the home to the Bayses. The suit alleged causes of action based on negligence in installing the stucco, negligence in constructing the home, breach of implied warranty of suitability, negligent misrepresentation, and fraud. River Oaks filed a motion to dismiss based on failure to state a claim. After converting the motion to a motion for summary judgment, the trial court entered judgment in favor of both defendants. The Bayses appeal.

1. The Bayses contend the trial court erred in granting summary judgment to River Oaks based on a motion to dismiss without giving the Bayses 30 days to submit evidence in opposition to the summary judgment motion. We agree.

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