Pleasure Beach, L.L.C. VS Darryl Smith

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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NUMBER 2007 CA 0823 PLEASURE BEACH L L C VERSUS DARRYL SMITH Judgment Rendered On appeal December 21 2007 from the Twenty Second Judicial District Court In and for the Parish of St Tammany State of Louisiana Suit Number 2005 14552 Honorable Jesse L Jesse L Wimberly Wimberly Larry J Green Presiding III Counsel for Plaintiff Appellee IV Pleasure Beach L L C Mandeville LA Nita R Gorrell Hammond LA Counsel for Defendant Darryl Smith BEFORE WHIPPLE GUIDRY AND HUGHES n I t t w fJk Appellant GUIDRY J seeking specific performance of a In this action granted a motion for summary Pleasure Beach L L C and ordered within Darryl Smith judgment of judgment filed by plaintiff purchase the subject property to For the thirty days from the signing of the judgment we reverse the Darryl Smith appeals from immovable property the defendant the trial court which purchase and sell contract to reasons that follow and remand FACTS AND PROCEDURAL HISTORY Beach entered into approximately Smith was to 145 Darryl Smith and Pleasure Beach 2005 On June 15 an agreement acres purchase in St the to purchase L L C and sell real property Tammany Parish According to property from Pleasure Beach for Pleasure Beach forwarded a letter had not received instructions from the to the attorney 640 000 00 within On October 12 closing attorney indicating that it as to the date The letter further indicated that if Mr Smith did not by Because it that Mr Smith did by stating that it was Thereafter perfOlmance Smith to and on to wish to go serve as a the to pay including failure of The terms s purchase agreement the property cause at that time the letter concluded purchase fonnal notice of default that the court issue a a interest attorney fees s petition and is dated June 14 2005 but 2005 2 was not specific judgment ordering in the change signed by the to Mr purchase ancillary damages and raised four defenses unmerchantability of title for petition subject property for the price outlined legal at issue and conditions of the understanding October 25 2005 Pleasure Beach filed Smith answered Pleasure Beach I Pleasure Beach forward with the damages requesting purchase agreement and not was and time for the sale purchase October 12 2005 he would be in default under the purchase agreement consisting of the agreement Mr thirty days following expiration of a ninety day inspection period 2005 Pleasure Mr the action in value of the parties until June 15 propeliy and extension of the inspection period Beach filed were a matter was entitled 2006 Pleasure 7 Smith Mr defenses s to summary judgment as a of law Following hearing a Pleasure Beach on in favor of Pleasure Beach judgment to September asserting that motion for summary judgment without merit and that Pleasure Beach On granting s motion the trial its motion and rendered court Mr Smith ordering the purchase the subject property within thirty days of the date of signing of judgment and awarding legal interest from the date of judicial demand until paid on the 640 000 00 purchase price of Mr Smith now appeals granting Pleasure Beach from this s reasonable attorney plus fees and costs s that the trial judgment asserting court to consider motion for summary judgment and in failing any of his defenses to Pleasure Beach claim for s erred in of the specific performance purchase agreement DISCUSSION A motion for summary judgment is scale trial when there is 0109 p 4 summary La as a no matter and admissions 2d 1140 on together with file issue of material fact and that the of law La C C P art 966 B 231 appellate avoid to Schwehm court The motion for 1143 9 La denied 07 0905 La 6 15 07 App answers to show that any affidavits to judgment Independent Fire Insurance Company 755 So 2d 226 230 La 2 29 00 court using the consideration of whether summary Mitchell 06 0382 p 03 is entitled reviews the district novo full Jones v a mover 99 2181 99 2237 p 7 motion for summary judgment de s 872 So genuine Corporation court issue of material fact 1st Cir 2 23 04 App Sunbeam An genuine device used procedural judgment should be granted if the pleadings depositions interrogatories there is no a 1st Cir decision same judgment 12 28 06 958 So 2d 1199 3 s to grant or deny v a criteria that govern the trial is appropriate 951 So 2d 307 Lieux 314 v writ On a motion for summary However moving party burden of is an party proof at issues for which the on trial the claim action or to nomnoving party fails do art 966 C In evidence no at p it presented so judgment sUlmnary was entitled agreement provide that Mr Smith Beach for 640 000 00 within inspection period However refused the to purchase purchase agreement agreement not comply Additionally Mr to seek to was that the tenns of the the purchase summary judgment specific performance of the answers to purchase Mr 2 a copy of the The also contract Smith purchase provided that if the purchaser periods specified request for admissions wherein purchase agreement in default placed the ninety day a period Pleasure Beach attached motion for was on property from Pleasure with the terms of the contract within the time the property and he La 5 872 So 2d at 1144 the conclusion of this time Pleasure Beach attached trial if the specific performance of the purchase to subject property its at produce Pleasure Beach asserted that based Smith admitted that he entered into the purchase must issue of material fact genuine the the adverse to nonmoving party only detailed the conditions outlined above but the seller was entitled failed to to on the court that there out to thirty days following expiration of at is will not bear the elements essential Particularly Pleasure Beach asserted agreement proof satisfy its evidentiary burden of proof Schwehm 03 0109 2 seeking one or more there is to moving party only point Thereafter the defense factual support sufficient C CP must moving party absence of factual support for s the initial burden of judgment by a he refused to letter from Pleasure Beach dated October 12 2005 2 We note that the purchase agreement is not attached to an affidavit is it swom to or copies of the purchase authenticity Accordingly this agreement party disputes agreement is of sufficient evidentiary quality to be given weight on a motion for summary judgment See Boland v West Feliciana Parish Police Jury 03 1297 p 6 La App 1st Cir 6 25 04 878 So certified However both Pleasure Beach and Smith offered identical nor into evidence and neither 2d 808 814 writ denied its 04 2286 La 1124 04 4 888 So 2d 231 Contracts have the effect of law Accordingly the reviewing between the as and purchase agreement La C C art parties evidence Pleasure Beach it would appear that Pleasure Beach established for its entitlement to However specific performance raised several defenses to Pleasure Beach purchase agreement facie prima by case stated above Mr Smith as consent due of the specific performance unmerchantability of title difference in value of property of failure to pre and cause post Hunicane inspection period by Executive Order of the and extension of the Katrina submitted claim for including lack of s a 1983 Governor of Louisiana Our review of the record indicates that Pleasure Beach sufficient to suggest that Mr Smith would be unable defenses to its claim for Smith his to come evidentiary burden of proof Pleasure Beach In defenses entitled claim for opposition to to to the art 1927 C C art 1948 a contract to Cause is the when it bears parties regarded La See La C C P on or C C the be valid there must only when it be by why a nature 1950 consent urged re his was not failure of of the parties or concerns a cause cause 2 966 C was a fraud enol defeat was duress La La without which known or should La C C art 1949 Enol may obligates himself person of the contract should have in art art satisfy to that Pleasure Beach have been incuned and that reason of his to of his defenses of the agreement because there Enol vitiates consent not one motion for summary judgment Mr Smith have been known to the other party obligation least at However consent may be vitiated obligation would cause on specific performance specific perfonnance C C trial purchase agreement particularly the In order for cause the s at one or more establish that he would be able to facts out Therefore the burden shifted to Mr specific performance forward with evidence to prove pointed good deGravelles 5 or faith v concern a any other circumstance that the regarded Hampton as a cause 94 0819 pp of the 3 4 La App 1st Cir 3 3 95 652 So 2d 647 649 writ denied 95 0826 La 5 5 95 654 So 2d 332 In arguing that there was a failure of cause Mr Smith asserts that the contemplated the subject property being developed for commercial which due to the Ponchatrain and nature of the property dredging of the Lake obtain fill In support of this defense Mr to states commercial goal fill for the lots Burns same of the Additionally as reason by Pleasure Beach by dredging the Mr for the can only engineer difficult or impossible to require permits obtain for this type of development as According from the U S these professional experience previous applications for such permits and that any such Banilleaux a to Mr be utilized if it is filled and the proposed Engineers and other agencies including the Louisiana In his Mr Curt purchase reclamation to the 1924 shoreline would Natural Resources same lake to obtain particularly Smith offered the affidavit of Robert G subject property for purchased the property Pleasure Beach and in the land surveyor and civil and enviromnental BalTilleaux the of that he Mr Smith also stated that Pleasure Beach was aware registered to him presented manner as was with the purposes required reclamation of land from Lake Smith introduced his affidavit wherein he development parties State responses thereto not Department of types of permits project and contemplated would Army Corps be after it are reviewing the was his capable opinion of being pennitted Based the on whether there is a foregoing evidence failure of cause reasonable minds could differ of the 3 purchase agreement as to Accordingly 3 We note that Pleasure Beach asserted many facts and attached several documents purporting to support these facts to its original memorandum in support of its motion for summary judgment and its rebuttal memorandum These facts and documents mostly address Mr Smith s knowledge and his exercise of due diligence during the inspection period Additionally several documents purport to show that the commercial use contemplated by the parties is viable However none of the documents they or attached to facts referenced a deposition or or attached to the memoranda affidavit Accordingly they 6 are swom are to or certified not of sufficient nor are evidentiary because Mr burden of fact to as Smith established that he would be able proof at trial and of his defenses the trial one favor of Pleasure Beach and in agreement that there is accordingly court ened in a to satisfy his evidentiary genuine issue of material granting summary judgment in ordering specific performance of the purchase granting summary 4 CONCLUSION F or the judgment foregoing the judgment of the trial in favor of Pleasure Beach and purchase agreement further reasons court ordering specific performance of the is reversed and this matter is remanded to the trial comi for proceedings All costs of this appeal are to be borne by the appellee Pleasure Beach L L C REVERSED AND REMANDED quality as at pp 5 6 to be afforded any weight 878 So 2d at 813 of its motion for summary judgment addressing this issue there are of these depositions or excerpts from said depositions attached to the memorandum memorandum in copies the motion for summary judgment See Boland 03 1297 Further though Pleasure Beach details deposition testimony in its on support otherwise made part ofthe record 4 Because we find Mr Smith established no or a perfoffilance we pretermit a a defense to Pleasure Beach discussion of Mr Smith 7 s other defenses s claim for specific

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