Boudreaux v. Vankerkhove

• Decision Date: 11 August 2008
• Docket Number: No. 2007 CA 2555.,2007 CA 2555.
• Citation: Boudreaux v. Vankerkhove, 993 So.2d 725 (La. App. 2008)
• Parties: Bret BOUDREAUX and Brittany Boudreaux v. Scott A. VANKERKHOVE.
• Court: Court of Appeal of Louisiana

993 So.2d 725

Bret BOUDREAUX and Brittany Boudreaux v. Scott A. VANKERKHOVE.

No. 2007 CA 2555.

Court of Appeal of Louisiana, First Circuit.

August 11, 2008.

Valerie Briggs Bargas, Baton Rouge, LA, for Plaintiffs/Appellees Bret Boudreaux and Brittany Boudreaux.

John S. McLindon, Baton Rouge, LA, for Defendant/Appellant Scott A. Van Kerkhove.

Before WHIPPLE, GUIDRY, and HUGHES, JJ.

GUIDRY, J.

A prospective purchaser of immovable property appeals a summary judgment granted in favor of the sellers ordering specific performance by the purchaser of obligations assumed in an "Agreement to Purchase and Sell" and a contempt order related to that judgment.

FACTS AND PROCEDURAL HISTORY

Scott A. Van Kerkhove agreed to purchase property and improvements located at municipal address 7512 Pine Bluff, Denham Springs, Louisiana from Bret P. Boudreaux and Brittany Boudreaux for $79,000.00 by an act of cash sale, as represented in an "Agreement to Purchase and Sell" dated June 19, 2006. The agreement provided that the sale was not subject to financing and that the act of sale would be executed at a closing held on or before September 19, 2006. On September 26, 2006, the Boudreauxs filed a "Petition to Enforce Agreement to Purchase and Sell," wherein they alleged that Mr. Van Kerkhove breached the "Agreement to Purchase and Sell" in bad faith and therefore sought specific performance of the agreement and all costs and attorney fees incurred for enforcing the agreement. The Boudreauxs further propounded discovery to Mr. Van Kerkhove in which they requested that Mr. Van Kerkhove admit or deny that (1) he signed the Agreement to Purchase and Sell and (2) he failed to purchase the property located at 7512 Pine Bluff in Denham Springs, Louisiana, by September 19, 2006. In response to the request for admissions, Mr. Van Kerkhove admitted that he signed the Agreement to Purchase and Sell and "that by September 19, 2006, [he] did not purchase the property located at 7512 Pine Bluff."

Thereafter, the Boudreauxs filed a motion for summary judgment to have Mr. Van Kerkhove "comply with the agreement to purchase and sell dated June 19, 2006." In support of the motion, the Boudreauxs attached a copy of their "Petition to Enforce Agreement to Purchase and Sell," the "Request for Admissions" propounded to Mr. Van Kerkhove, and the "Answers to Request for Admissions" submitted by Mr. Van Kerkhove. Following a hearing on the motion for summary judgment, the trial court signed a judgment on February 2, 2007, ordering Mr. Van Kerkhove "to go through an act of sale to purchase the property, which forms the basis of this suit, within fourteen (14) days of the date of the hearing on the Motion for Summary Judgment, January 4, 2007." The judgment further provided that the trial court would defer ruling on any monetary judgment "until such time that the defendant fails to comply with this judgment."

Pursuant to the summary judgment ruling, the parties scheduled a new closing date of January 19, 2007. However, prior to the date set for the closing, counsel for Mr. Van Kerkhove allegedly informed an agent of the title company that had been selected to perform the closing that Mr. Van Kerkhove would not attend the closing and that Mr. Van Kerkhove had no intention of purchasing the property. Consequently, on February 8, 2007, the Boudreauxs filed a "Motion for Contempt and Request for Expedited Hearing," wherein the Boudreauxs alleged that Mr. Van Kerkhove's failure to complete the sale constituted an act of constructive contempt pursuant to La. C.C.P. art. 224. The Boudreauxs further prayed that the trial court "issue judgment in the full amount of the agreement to purchase ordering that title to the property at issue vest in the defendant when Plaintiffs have received all monies due to them, including all costs and attorneys' fees associated with pursuing the judgment at issue."

A hearing on the Boudreauxs' motion for contempt was held on April 9, 2007. Following the hearing, the trial court granted the Boudreauxs' motion for contempt and decreed that Mr. Van Kerkhove "be ordered to go through an Act of Sale to purchase the property which forms the basis of this suit within thirty (30) days of the date of the hearing on the Motion for Contempt" in a judgment signed May 7, 2007.

On May 9, 2007, a final hearing was held in this matter at which the trial court again considered the Motion for Contempt and further considered the Boudreauxs' April 24, 2007 "Motion to Reurge Prayer for Relief Pursuant to Motion for Summary Judgment Previously Filed." In the June 1, 2007 judgment resulting from the May 9, 2007 hearing, the trial court rendered the following decrees: (1) again granted the motion for contempt and ordered Mr. Van Kerkhove to pay the monthly interest on a loan obtained by the Boudreauxs to purchase the property at issue; (2) granted the motion to reurge the prayer for relief contained in the summary judgment previously filed; (3) awarded the Boudreauxs a money judgment in the amount $83,579.84, including costs associated with the motions for summary judgment and contempt; and (4) ordered that title to the property at issue vest with Mr. Van Kerkhove upon full payment of the money judgment. Mr. Van Kerkhove now appeals.²

ASSIGNMENTS OF ERROR

Mr. Van Kerkhove seeks review of the trial court's judgment relative to the following alleged errors:

1. The Trial Court erred in granting the Motion for Summary Judgment in light of all the material issues of fact which were in dispute.

2. The Trial Court erred in its ruling on the "Motion for Contempt", [sic] ordering Mr. Van Kerkhove to pay interest on the underlying loan (which payment was ordered for his "contempt") and also rendering a money judgment against Mr. Van Kerkhove in the amount to $83,579.84.

STANDARD OF REVIEW

A motion for summary judgment is a procedural device used to avoid a full-scale trial when there is no genuine issue of material fact. Schwehm v. Jones, 03-0109, p. 4 (La.App. 1st Cir.2/23/04), 872 So.2d 1140, 1143. The motion for summary judgment should be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits, show that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B); Independent Fire Insurance Company v. Sunbeam Corporation, 99-2181, p. 7 (La.2/29/00), 755 So.2d 226, 230-231. An appellate court reviews the district court's decision to grant or deny a motion for summary judgment de novo, using the same criteria that govern the trial court's consideration of whether summary judgment is appropriate. Lieux v. Mitchell, 06-0382, p. 9 (La.App. 1st Cir.12/28/06), 951 So.2d 307, 314, writ denied, 07-0905 (La.6/15/07), 958 So.2d 1199.

On a motion for summary judgment, the initial burden of proof is on the moving party. However, on issues for which the moving party will not bear the burden of proof at trial, the moving party must only point out to the court that there is an absence of factual support for one or more elements essential to the adverse party's claim, action, or defense. Thereafter, the nonmoving party must produce factual support sufficient to satisfy its evidentiary burden of proof at trial; if the nonmoving party fails to do so, there is no genuine issue of material fact. La. C.C.P. art. 966(C)(2); Schwehm, 03-0109 at 5, 872 So.2d at 1144.

DISCUSSION

In his first assignment of error, Mr. Van Kerkhove contends that there exist several genuine issues of material fact that should have precluded the granting of summary judgment by the trial court.

In seeking summary judgment, the Boudreauxs attached to their motion for summary judgment the following documents: a copy of the petition; a copy of the request for admissions issued to Mr. Van Kerkhove, to which a copy of the agreement to purchase and sell³ was attached; a copy of Mr. Van Kerkhove's answers to the request for admissions; and an affidavit executed by the Boudreauxs wherein they affirmed that as of the date of the affidavit, they had not been contacted by Mr. Van Kerkhove to schedule a date for the closing. The Boudreauxs asserted that the terms of the purchase agreement provide that Mr. Van Kerkhove was to purchase the property located at 7512 Pine Bluff from the Boudreauxs for $79,000 by September 19, 2006. The purchase agreement also provided that either party was entitled to seek specific performance of the contract if either failed to comply with the terms of the contract within the time period specified. Additionally, in his answers to the request for admissions, Mr. Van Kerkhove admitted that he signed the purchase agreement and that by September 19, 2006, he did not purchase the property at issue. Therefore, the Boudreauxs asserted that based on the evidence presented, they were entitled to specific performance of the purchase agreement.

In opposing the motion for summary judgment, Mr. Van Kerkhove alleged that there is a discrepancy in the contract that raises a genuine issue of material fact as to whether a binding contract was perfected. Specifically, Mr. Van Kerkhove claims that because the Boudreauxs signed and dated the agreement to purchase and sell, indicating that they had read, understood, and accepted the offer, prior to Mr. Van Kerkhove signing and dating the agreement to indicate that he had read and understood the terms of the offer, the validity of the agreement is questionable. We find no merit in this assertion.

Generally, a bilateral promise of sale or contract to sell that sets forth the thing, the price, and meets the formal requirements of the sale it contemplates, entitles either party to the agreement to demand specific performance upon compliance with the obligations expressed in the agreement. La. C.C. art. 2623; see also Stumpf v. Richardson, 99-415, pp. 3-4 (La.App. 5th Cir.11/30/99), 748 So.2d 1225, 1227. In order to...