Richard v. McElroy, 2008 CA 0060 (La. App. 10/31/2008)
| Decision Date | 31 October 2008 |
| Docket Number | 2008 CA 0060 |
| Parties | HENRY J. RICHARD v. JOYCE BREAUX McELROY AND CAROLYN BREAUX |
| Court | Court of Appeal of Louisiana — District of US |
ON APPEAL FROM THE THIRTY-SECOND JUDICIAL DISTRICT COURT IN AND FOR THE PARISH OF TERREBONNE, STATE OF LOUISIANA, DOCKET NO. 147,922, HONORABLE GEORGE 3. LARKE, JUDGE PRESIDING.
JERRY L. HERMANN, Counsel for Plaintiff/Appellant, Henry J. Richard
ROBERT B. BUTLER, III, Counsel for Defendants/Appellees, Joyce Breaux McElroy and Carolyn Breaux.
JACK A. RICCI, Counsel for Appellants, FAITH BOUDREAUX, Bill Boyd and Continental Casualty Company.
JASON P. LYONS, Counsel for Appellants, Beverly Marcel, Howard Joseph Trahan, Seth, Joseph Trahan and Keith John Boudreaux.
CHARLES F. GAY, Jr., Counsel for Appellees, Harold Foley, Verlyn Foley and West Park Partners, L.P.
Before: PARRO, McCLENDON, and WELCH, JJ.
Plaintiff, Mr. Henry Richard, filed a suit for damages and for specific performance of his agreement to purchase property owned by Joyce Breaux McElroy and Carolyn Breaux (sellers). Named as defendants were: the sellers; the listing agency, Houma's Town & Country Real Estate, Inc. (Town & Country); its insurer, Continental Casualty Company; the real estate agency's owner and broker, Bill G. Boyd; the listing agent for the property, Faith Boudreaux; the buyer of the property, West Park Partners, L.P.; and Harold and Verlyn Foley, whose offer on the same land had been accepted before Mr. Richard's conditional or back-up offer. In this appeal, Mr. Richard challenges the trial court's dismissal of his claims against the sellers.1 We reverse, in part, affirm, in part, and remand.
The sellers owned land on West Park Avenue in Terrebonne Parish. According to a legal description filed in the record, the tract of land at issue here, 4425 West Park Avenue, contained 13.7 acres. It also included a house and other structures. The sellers listed the property with Town & Country. The acreage was listed with Ms. Boudreaux, and the house, which was to be sold separately and moved off of the property, was also listed, but with another Town & Country agent. Information on the property was sent to the local Multiple Listing Service, MLS, with the notation that the house was "optional," and separate MLS listings were entered.
Before the Foleys' offer was accepted, the sellers had received other offers on their West Park Avenue properties. At least two of the offers, which were presented on forms entitled "`LAND'AGREEMENT TO PURCHASE OR SELL," specifically excluded the house in either the offer or a counter offer.
On July 29, 2005, the Foleys, also using Town & Country as their agent, submitted to the sellers a signed offer to buy the property at 4425 West Park Avenue for $250,000.00. The offer, made on a form entitled "AGREEMENT TO PURCHASE OR SELL," noted that the house was to be moved by the sellers and was made contingent on the buyers' ability to obtain tax credits. The offer was accepted on August 1, 2005. The act of sale was to be passed on or before January 31, 2006. However, the purchase agreement allowed for discretionary extensions of the time to close the act of sale, provided that both the buyers and the sellers agreed to the extension.
On October 12, 2005, after Hurricane Katrina swept through the area in August of 2005, Mr. Richard made an offer on the same property through his LaRussa Real Estate agent, Shelia Oncale. His offer, made on a preprinted form entitled "LAND' AGREEMENT TO PURCHASE OR SELL," contained no exclusion of the house or other structures on the property. In fact, the line provided in the form for exclusions was marked with "N/A." In the "PRICE" section of the form, the sum of "approximately $250,000" was filled in, with the following clarification: "17,777.78 per Acre per survey Acreage to Rule." However, a line was drawn through part of the clarifying information. In the section for "OTHER CONDITIONS OF SALE," the offer provided, in part, that the seller agreed that Mr. Richard would have 120 days to obtain necessary permits and that "Purchaser's (sic) to close sale 30 days after final engineering." The "OTHER CONDITIONS' section also provided that: A judgment of possession in the Succession of Elbert Joseph Breaux was attached, as well as a plat showing various pieces of property, including one designated as 4425 W. Park, with two sums crossed out and the amount of $250,000 written on the tract. In the section providing for a "GOOD FAITH DEPOSIT," the offer, in a preprinted sentence, stated: "This agreement is not a binding contract unless or until the Good Faith Deposit has been received." Upon acceptance, the form also required the broker to place the deposit in its escrow account. If either party breached the accepted agreement, the non-defaulting party had the right to demand specific performance or damages, not both, at the non-defaulting party's option. The party in default was also made liable for the costs and fees, including brokerage and attorney fees, incurred as a result of the breach.
The sellers let the offer lapse by its own date of termination. However, on October 18, 2005, the sellers made a counter offer stating that "all other terms remained unchanged," except the following specific changes were to be made in the offer's "OTHER CONDITIONS" section:
(Emphasis added.) Mr. Richard accepted the counter offer on October 20, 2005, and a check for the amount of the requisite good faith deposit was received by Town & Country. Admittedly, Town & Country did not deposit it in the agency's escrow account.
On January 31, 2006, Town & Country, acting as selling and listing agent, submitted to the sellers an offer by Howard Trahan and Beverly Marcel to purchase separately the house on the land in question. Mr. Trahan and Ms. Marcel agreed to move the house to another piece of property within 30 days of the act of sale, and the act of sale was to be passed on or before February 28, 2006. The sellers accepted the offer on February 1, 2006. Although the date for the act of sale on the house passed without any extensions being granted, a subsequent sale date was set. However, the sale of the house was never completed.
Pursuant to a provision of the Foley purchase agreement, two extensions were granted by mutual agreement of the Foleys and the sellers. The first extension was granted on January 31, 2006, and extended the time to pass the act of sale to March 15, 2006. By the second and final extension, the time for the sale was extended until March 31, 2006.
Between January 31, 2006 and late March of 2006, Mr. Richard and his agent unsuccessfully attempted to convince Town & Country agents, and one of the sellers, that the Richard purchase agreement, via the sellers' language in their counter offer, provided a termination date for the Foley contract of January 31, 2006. Thus, Mr. Richard asserted, the sellers had waived their discretion to grant extensions, and, by its own terms, the Richard purchase agreement became the primary contract as of January 31, 2006.
An act of sale of the acreage in question was passed before a notary on March 30, 2006. However, the property was sold to a different legal entity, West Park Partners, LP., not to the Foleys. Although Verlyn Foley was the general partner for West Park Partners, L.P., the limited partnership did not have a purchase agreement with the sellers, and the Foleys did not assign their purchase agreement to the limited partnership. See LSA-C.C. arts. 2623 & 2642, et seq.
On March 30, 2006, after his attempts to assert his position as the primary purchase agreement had been ignored, Mr. Richard filed a suit for specific performance, damages, costs, and fees, and, pursuant to LSA-C.C.P. art. 3751, et seq., filed a Notice of Lis Pendens in the parish records. When an attorney acting for West Park Partners, L. P.'s lender learned of the notice of its pendens, the funding was withdrawn and stop payment orders were issued on the checks disbursed to the sellers and the Town & Country agents, who had acted as the selling and listing agents. Subsequently, at the scheduled closing on the house, the attorney stopped the sale because of the filed !is pendens notice. After an agreement for an alternative mortgage was entered into by the sellers and West Park Partners, L.P. on May 4, 2006, the sale to the limited partnership was recorded in the parish records on June 6, 2006.
In support of his suit for both specific performance and damages, Mr. Richard alleged that his agreement contained no exclusions, and thus, by law, all component parts of the land, including the house and other structures, were part of the agreement to purchase. In addition, he alleged that, pursuant to the language provided by the sellers in their counter offer, if either of the conditions specified in the purchase agreement was fulfilled, the Richard purchase agreement would become the primary purchase agreement. Throughout, Mr. Richard has argued that, by placing a date in the accepted counter offer as the end date, the sellers waived their discretion to grant any extensions to the Foleys beyond that date. Thus, Mr. Richard believed that the Foleys' contract with the sellers ended on the termination date specified in the agreement, January 31, 2006, and his agreement became primary.
After the Richard suit was filed, various incidental demands were...
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