Wesley v. Our Lady of the Lake Hosp., Inc., NUMBER 2017 CW 0767

• Decision Date: 14 June 2018
• Docket Number: NUMBER 2017 CW 0767
• Parties: STEPHEN E. WESLEY AND KATHY GUNN WESLEY v. OUR LADY OF THE LAKE HOSPITAL, INC.
• Court: Court of Appeal of Louisiana — District of US

STEPHEN E. WESLEY AND KATHY GUNN WESLEY v. OUR LADY OF THE LAKE HOSPITAL, INC.

NUMBER 2017 CW 0767

STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT

June 14, 2018

NOT DESIGNATED FOR PUBLICATION

Appealed from the 19^th Judicial District Court In and for the Parish of East Baton Rouge, Louisiana

Trial Court Number 638822

Honorable Timothy E. Kelley, Judge

Charles E. Griffin, II

St. Francisville, LA

Attorney for Relators

Plaintiffs - Stephen E. Wesley and

Kathy Gunn Wesley

Frank S. Craig, III

Michael R. Hubbell

Saul R. Newsome

Baton Rouge, LA

Attorneys for Respondents

Defendant - Our Lady of the Lake

Hospital, Inc.

BEFORE: McCLENDON, WELCH, AND THERIOT, JJ.

WELCH, J.

The plaintiffs, Stephen E. Wesley and Kathy Gunn Wesley ("the Wesleys"), appeal a judgment sustaining a peremptory exception raising the objection of no cause of action and dismissing their first amended and supplemental petition for specific performance against the defendant, Our Lady of the Lake Hospital, Inc. ("OLOL"). OLOL has answered the appeal seeking an award of attorney fees for defending this appeal. We convert the appeal to an application for supervisory writs, grant the writ, affirm the judgment of the trial court, and decline to address the answer to appeal.

FACTUAL AND PROCEDURAL HISTORY

We borrow from our earlier opinion, Wesley v. Our Lady of Lake Hosp., Inc., 2015-1649, pp. 2-4 (La. App. 1^st Cir. 6/3/16) (unpublished):

On April 24, 2015, the Wesleys filed a petition for specific performance against OLOL. According to the allegations of the petition, on December 7, 2007 (with an effective date of December 10, 2007), OLOL executed a purchase agreement with the Wesleys to purchase a particular piece of immovable property containing approximately 3.35 acres, which was located at 17155 Jefferson Highway in Baton Rouge, Louisiana, for the sum of $1,170,000.00. One of the conditions for the sale of the property was the requirement that the Wesleys obtain, from the City of Baton Rouge ("the City"), a revocation regarding the public's right of use of a 60-foot right-of-way designated as "Edelweiss Drive" on the plats pertaining to the subject property. The original time period of the purchase agreement was 60 days from the December 10, 2007 effective date, unless otherwise mutually agreed upon by the Wesleys and OLOL.

The Wesleys were not able to obtain the revocation from the City regarding the Edelwiess Drive property within the 60 day time frame, so the parties agreed to amend the purchase agreement on March 4, 2008. In the amended purchase agreement, the parties agreed that the Edelweiss Drive property would be omitted from the property description in the sale and that OLOL would purchase the remainder of the property (approximately 2.54 acres) for the sum of $768,213.80. The parties also agreed that once the Wesleys obtained the revocation from the City regarding the right of use of the Edelweiss Drive property, OLOL would purchase that property at a price of $6.85 per square foot. In the amended purchase agreement, the Wesleys were to obtain the formal revocation from the City within a 90-day period; otherwise, OLOL [would] not have an obligation to purchase the Edelweiss Drive property.

The revocation process, as well as other curative work for the title that had to be performed by the Wesleys, extended past the 90-day period set forth in the amended purchase agreement. After all title defects had been cured and the revocation by the City completed and recorded, the Wesleys informed OLOL that they were ready and willing to close on the remaining property, i.e., the Edelweiss Drive property, and they requested that a sale date be set. OLOL responded that they were no longer interested in the Edelweiss Drive property and refused to purchase the property on the basis that the revocation process and other curative work had not been completed within the 90-day period set forth in the amended purchase agreement.[]

The Wesleys then filed ... suit against OLOL. The Wesleys claimed that OLOL was aware that the revocation process and curative title work would take longer than 90 days, that OLOL was involved in the revocation process and title work, and that OLOL was in constant contact and communication with the Wesleys regarding these issues. Thus, the Wesleys claimed that they were entitled to demand specific performance for the consummation of the sale and purchase of the Edelweiss Drive property for the sum previously agreed to in the amended purchase agreement, plus reasonable attorney's fees and costs.

In response, OLOL filed a peremptory exception raising the objection of no cause of action. OLOL claimed that since the Wesleys admitted that they had 90 days to obtain the revocation of the right of use from the City regarding the Edelweiss Drive property and that they failed to do so, OLOL had no obligation to purchase the property under the specific terms of the amended purchase agreement. Furthermore, OLOL contended that, to the extent the Wesleys claimed that specific performance was available because OLOL and the Wesleys continued to communicate regarding the revocation by the City and the curative title work, those subsequent dealings were insufficient to alter the terms of the purchase agreement or the amended purchase agreement because those subsequent dealings were never reduced to writing (i.e., an authentic act or act under private signature), and thus, were not enforceable. Accordingly, OLOL argued that the Wesleys failed to state a cause of action for specific performance.

After a hearing, the trial court rendered judgment sustaining OLOL's peremptory exception raising the objection of no cause of action and dismissing the Wesleys' claims against OLOL. A judgment in accordance with the trial court's ruling was signed on August 13, 2015, and ... the Wesleys ... appealed, challenging the trial court's ruling on the exception.

On appeal, this Court found that the Wesleys failed to set forth a cause of action for the specific performance for the consummation of the sale of the Edelweiss Drive property according to the terms set forth in the amended purchaseagreement, and therefore, affirmed that portion of the trial court's judgment sustaining the objection of no cause of action. Wesley, 2015-1649 at p.6. In doing so, this Court noted that, according to the allegations of the Wesleys' petition and the purchase agreements that were annexed thereto, the amended purchase agreement, which was in writing, contained a condition—it required the Wesleys "to obtain the formal revocation within a 90-day period; otherwise [OLOL] did not have an obligation to purchase ... [the] Edelweiss Drive property[.]" Wesley, 2015-1649 at p.5. This Court further noted that according to the petition, the Wesleys did not obtain the revocation from the City in the 90-day period following the amended purchase agreement. Id. Therefore, this Court determined that since the condition for the contract of sale failed, OLOL had no obligation to purchase the property and the Wesleys could not demand specific performance of the amended purchase agreement. Wesley, 2015-1649 at p.6. In addition, this Court determined that to the extent that the Wesleys claimed that they were entitled to specific performance of the amended purchase agreement based on subsequent communications regarding the revocation and other curative title work, the Wesleys failed to establish or allege that those communications met the formal requirements of a contract to sell or purchase agreement so as to extend or modify the amended purchase agreement or otherwise to create an obligation on behalf of OLOL to purchase the Edelweiss Drive property. Id.

However, this Court further found that the Wesleys should have been given an opportunity to amend their petition, because we could not determine whether the grounds for the objection of no cause of action could be removed by amendment of the petition so as to state a cause of action for specific performance. Wesley, 2015-1649 at pp.6-7; see La. C.C.P. art. 934. Therefore, this Court vacated the trial court's ruling dismissing OLOL from this suit and remanded tothe trial court with instructions to allow the Wesleys the opportunity to amend their petition. Wesley, 2015-1649 at p.7.

Following remand, on June 17, 2016, the Wesleys filed their first amended and supplemental petition. Therein, the Wesleys essentially alleged that OLOL, through oral and written communications between the parties' attorneys, waived the 90-day period set forth in the amended purchase agreement and altered provisions of the amended purchase agreement. The Wesleys also claimed that they had relied on OLOL's attorney's actions and communications indicating that OLOL was still interested in the Edelweiss Drive property and that the curative work to the title to that property should continue. Based on these assertions, the Wesleys claimed that they were entitled to demand specific performance for the consummation of the sale and purchase of the Edelweiss Drive property for the sum previously agreed to in the amended purchase agreement, plus reasonable attorney fees and costs. In response, OLOL again filed a peremptory exception raising the objection of no cause of action. OLOL claimed that even with the added allegations that OLOL waived the 90-day period, altered the terms of the agreement, and relied on OLOL's attorney's actions and communications, OLOL was still not obligated to purchase the Edelweiss Drive property under the specific terms of the agreement and amended purchase agreement. In the exception, OLOL also sought an award of attorney fees pursuant to the terms of the purchase agreement.

After a hearing, the trial court signed a judgment on March 7, 2017, which sustained OLOL's peremptory exception raising the objection of no cause of action and dismissed the Wesleys' claims against OLOL. The March 7, 2017 judgment also provided that the Wesleys would "bear [OLOL's] reasonable attorney's...