Tangi Homes & Properties, Inc. VS Viola Homes, Inc. and Bone Capital Investments, Inc.
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NUMBER 2008 CA 2534 fitJ TANGI HOMES e PROPERTIES VERSUS VIOLA HOMES INC AND ft1 v BONE CAPITAL INVESTMENTS INC Judgment Appealed Rendered OCT 2 7 2009 from the Twenty First Judicial District Court In and for the Parish of Tangipahoa Louisiana Trial Court Number 2008 0000194 Honorable Bruce C Bennett Judge Jeff LeSaicherre Attorney for Ponchatoula LA Plaintiff Appellee Tangi Homes Properties David C Loeb Robert E Couhig Inc Attorneys for Defendant Appellant III New Orleans LA Viola Homes Inc and Bradley A Stevens Amite LA Thomas B Waterman Attorney Ponchatoula LA Defendant Bone BEFORE l Pt for Appellee Capital Investments WHIPPLE PARRO McCLENDON HUGHES AND WELCH n JJ a J Inc dfJn1tJ L 1ft kJSTjNJ S WELCH J In this concursus Viola Homes Capital the representing agreement an the to Bone of the amount for the purchase as deposit of would be 45 000 per lot for price of Tangi 20 000 applied was a total in the Homes s notary on of Sales prior to that of 10 a the purchase of the lots facto ten for a lots would be remaining ten Builder Discount With regard to the comply without s fees incurred purchase agreement and agent for Viola Homes or on was fees as a signed by tender of SELLER shall have the including result of this Jean C October 10 2006 2 may declare the formality beyond In either event any costs and reasonable attorney breach thereof The forfeited PURCHASER to 1 000 per lot provided specified specific performances or the right to reoffer the property for sale and right deposit with this agreement SELLER shall have the right to demand at SELLER S option SELLER shall have within the time recover a and that the seller would have all debris clause the purchase agreement deposit ipso 900 000 Homes would pay amount in twelve months at Act behalf of on purchase price of October 31 2006 that the In the event PURCHASER fails to to Inc Properties prepared that the Act of Sale for the first purchased contract title deposited into of twenty lots in High Point Gardens Subdivision purchase removed from the lots breach of Homes in connection with Agreement to Purchase an passed before the purchaser lots would be costs FACTUAL AND PROCEDURAL HISTORY broker agent s plus amended affirm purchase agreement further provided that Viola Bone 20 000 of Homes and plaintiff Tangi We amend the judgment and Viola Homes for the total the deposit made by Viola the by court On October 9 2006 to in immovable property which had been purchase Homes I The in favor of the defendantseller Bone judgment a Inc amount of the registry Tangi appeals Investments Homes Inc proceeding the defendantpurchaser Viola Sue Bone expenses and agreement Viola accepted as or principal the offer and purchase agreement the signed parties signed closing date amendment an the first on December On amendment to the debris removal to counter days Viola for offer total a rejected the but accepted added that the closing closing ten on the on the first ten lots would lots would ten remaining 20 000 a non lots offer with respect counter the and On December purchase agreement to the deletion of the closing date of December provision concerning the remaining ten lots would be before Viola Homes credited with its 10 000 On deposit of of January 1 0 000 specifically accepted ten nor 22 2006 With lots and the additional rejected Bone purchased in s counter twelve months on the first notary Deborah F Angle At the 1 000 per lot deposit previous 15 2007 Viola Homes ten lots provided Bone a passed Viola Homes closing for was total credit of with an thereby making its total deposit on the remaining additional ten lots the 20 000 The Act of Sale or proposed 800 000 purchase price of On December 20 2006 the Act of Sale sum another Notably however the original purchase agreement provided that the remaining was offered the proposed amendment which deleted to deposit on those remaining the Homes and that Viola Homes would pay Viola Homes neither deposit offer a requirement Viola Homes regard which extended the purchase agreement December 22 2006 that the debris removal On October 30 2006 the November 20 2006 40 000 per lot within 365 refundable to 2006 15 18 2006 Bone made occur lots the builder discount from the removed the 10 on to October 11 2006 purchase agreement which changed the purchase price from the 45 000 per lot to be held ten on on the remaining ten twelve months of December 20 2006 of Sale did not go through because Viola 3 lots The was not parties do Homes was passed within 365 days not unable dispute to that the Act obtain financing however both Viola Homes and Bone claimed that 20 000 this deposit held and proceeding concursus by Tangi in escrow 20 000 entitled were Therefore Homes placed the they Tangi into the deposit to the Homes filed registry of the court After lots trial a on Homes by Viola the merits the trial was not conditioned upon Viola Homes Bone to the by refundable deposit whether there was a tender of title Thereafter Homes on was carry out the ten remaining the trial in written court indicated by a court ten remaining vain and useless was deliver merchantable title refundable the the to to regard act 20 000 the issue of or whether judgment found that Viola they would a The trial court before the therefore be able not to formal tender of also found that purchaser the trial ready willing and able was non under advisement impossible Lastly and Bone proposed matter therefore lots obtain to notary court found transfer and to entitled s to the non deposit On August Bone and against 18 2008 the trial court Viola Homes and the the court in the amount of Viola Homes now appeal 20 000 plus signed a written judgment in favor of proceeds deposited into the registry of costs and it is from this judgment that appeals II On for required to be passed all relevant times at took the reasons formal tender of title would have been was With words and actions that purchase of the because the Act of Sale that Bone with regard lots ability tender of title in accordance with the agreement title would have been a the necessary the trial clearly purchase agreement purchase of the ratified Homes financing for the purchase and that Viola amendment found that the court LAW AND DISCUSSION Viola Homes that tender of title was not a asserts that the trial condition 4 court erred in to declaring precedent determining its deposit forfeited According Bone given the right seek was forfeited without for Viola Homes make a deposit reasonable time and willing to 1986 to tender of title be forfeited all that A See when the seller occurs for the sale and goes place 1985 was Homes either to to Thus purchaser of Bone required to it v Namer v Young longer 417 So 2d 24 Koehl v wants to on was to or even La ready 481 So 2d 655 Shipp 1215 when the is unable 26 definite and a that date and time 496 So 2d 1211 formal tender is necessary no gives notice of See Brooks sale Thaly communicated that he sale formality beyond proceed with the App 1st Cir Cir by the purchaser Viola the seller reoffer the property for sale and declare the to or parties tender of title A tender of title La between the purchase agreement upon breach specific performance deposit and the to 1 App 5th La purchaser has through with the to go App 658 st Cir 1982 The apparent purpose of the contractual requirement of tender of title by the seller is to provide contractual the obligation for whatever place purchaser with reason of the sale and or to by presenting 874 La pass the sale and the sale to be passed See Morrison v contract s impossible his refusal to do so purchaser completed an active breach of the at that time and s the seller has place Kraft v Baker 1979 provides that the purchaser notary never sets a time for the seller to make Fineran 397 So 2d 838 be a himself App 4th Cir purchaser it is situation where the implicitly or spirit of the contractual requirement where the However explicitly comply with his By providing notice of a definite and reasonable time and fulfilled the purpose and 377 So 2d 871 declare to explicit opportunity an 840 conduct makes it La a or s place notary is for the act to of formal tender of title App 4th Cir impossible for the 1981 act In of sale a to tender of title is unnecessary because such conduct constitutes contract See Bergeron 5 v Bertrand 514 So 2d 622 624 App 4th Cir La announced that he will 1987 not of the contract the other do so La honor party is an not would be vain and useless App 4th Cir After that Bone when agreement required See Liuzza thorough review of the record a was by tender the and reasonable date and time evidence that title was to find we performance because Bone s the court estate set for the formally tendered broker act of sale notary therefore it was impossible nev r for Bone Since Viola Homes conduct in failing made it of sale impossible for the act therefore in active breach of the extension So 2d or at 840 of the time period and had Thus Accordingly Bone 6 for the act was Thus tender of title the Bone s remaining but did not entitled was 514 So 2d at 624 through on of act of sale Viola Homes not required vain and useless was that the before Viola place for the requested was note formal tender of title Bergeron Bone a we place completed Homes could not close previously specified at 693 be to performance because it would have been 333 time definite no is there other passed or a Viola Homes had informed Bone Youngblood that Viola within the time a time make to to set a purchase agreement See Morrison 397 So 2d Furthermore set and nor Viola Homes to Homes Viola Homes in the of Bone Although that the sale would be notary error determination s president purchase agreement specified Ms to transfer and deliver merchantable title real was ever manifest no The trial of Robert Bone testimony Stephanie Joyce Youngblood unnecessary has acts Panzer 333 So 2d 689 693 v the trial court ready willing and able supported by sale or is otherwise in active breach or to party by words a 1976 factual conclusions reached is Therefore act to the agent ten receive to lots an tender See Liuzza 20 000 non refundable deposit made by However state specifically court we s registry with all against Viola Homes costs of these the Accordingly we hereby amend subject to the other provisions Inc and the and amount concursus registry set reasons I for judgment the trial herein in favor of Bone of the of 20 000 00 awarded are to court Capital proceeds deposited judgment the judgment in part into the s lots judgment signed by Thus the proceedings proceeds in the proceeds deposited sum remaining court the judgment of the Court in the full specify that the eller gets the money and ten that while the trial only orders that there be Investments Inc the note Viola Homes for the to does amount forth in the August 18 2008 together not actually the seller Bone specifically in the into award Bone of 20 000 judgment We note that in 2d So at 26 we stated that a formal tender of title is Young 417 has communicated that he no longer wants to or is unable necessary purchaser to go through with the sale Although Young dealt with a tender of title provision that is almost identical to the tender of title provision in this case we find that Young is factually distinguishable from the case before us In Young suit was brought by prospective sellers against prospective purchasers for breach of a purchase agreement and against a third party that was holding the prospective purchasers deposit which was specifically reserved for the sellers in the event of forfeiture of the deposit The purchase agreement was conditioned However upon the purchasers ability to obtain a loan on terms contractually stipulated because the purchasers were unable to obtain a loan under the terms stipulated and after the purchaser lost his job the sale was never consummated The trial court rendered judgment in favor of the sellers and against the purchasers and awarded damages in the amount of the deposit plus reasonable attorney fees in cost This court reversed noting that because the sale was conditioned upon the purchasers obtaining a loan the purchasers obligation under the purchase agreement was to make a good faith effort to obtain a loan on the terms Based on the evidence in the record demonstrating that the contractually stipulated purchasers had attempted to obtain a loan under the terms specified but the application for the loan was rejected this court concluded that the purchasers made a good faith effort to obtain a loan Additionally this court noted there was also no evidence in the record that a tender of title had occurred which was necessary even though the purchaser had verbally communicated his unwillingness or inability to go through with the contract even Thus in when the Young purchasers to obtain loan the purchasers a purchase agreement was conditioned on the ability of the since the purchasers had made a good faith effort to obtain a because the loan and were not in active necessary for forfeiture of the loan on Viola Homes ability to obtain breach of the In this case financing the or a purchase loan Thus when Viola Homes informed the remaining lots within the time through its agent that they would not close on specified and failed to set a reasonable date time and place Bone was in active breach of the contract Therefore we for the act of sale Viola Homes have concluded that tender of title not necessary because it would have been vain and useless 7 therefore tender of title was agreement was not conditioned contract was III For all of the above court 18 2008 affirmed judgment All subject of these to the other 2008 18 Homes is proceeds deposited In all other costs August against Viola award Bone the the amount of 20 000 00 the reasons in favor of Bone and specifically CONCLUSION judgment hereby into the provisions of the trial amended in part to of the in registry set forth in the court August respects the August 18 2008 judgment is proceedings are hereby assessed defendantpurchaser Viola Homes Inc JUDGMENT AMENDED AND AS AMENDED AFFIRMED 8 to the STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2008 CA 2534 TANGI HOMES PROPERTIES VERSUS VIOLA HOMES INC AND BONE CAPITAL INVESTMENTS INC BEFORE PARRO J an established meaning and creates following The required a court I believe the to be jurisprudential exception majority opinion is Act of Sale on the factual purchaser s notary to take any action it finding that the was The act of sale was not pOSSible for the seller to agreement to purchase preceding provision states wording is handwritten requirement of passage of the to pass the act of only language designating the closing attorney paragraph which states that the Act of Sale A previously factually and legally incorrect agreement to purchase does not specify whose notary is passed before Purchasers Notary agreeable not provision passed before the purchaser s notary therefore because the seller could sale for the second ten lots italicized clear contractual tender of title for the second ten lots described in the However the to be a a reasons majority opinion is based not force the make JJ dissenting recognized by this for the HUGHES AND WELCH McCLENDON disagree with the majority opinion which ignores I with WHIPPLE PARRO on at expense of PURCHASER is 10 31 2006 on or sooner First 10 lots to Close Od 31 the contract When read in context act of sale before the is in the if mutually 2006 The the contractual purchaser s notary applies only to the sale of the first ten lots which is the 101 So 2d 762 Carroll commission for other lots 1st Cir App act of sale to be an was in the also to be passed by agreement before of law to be requirement for the act of sale requirement that the seller must make the deposit forfeited require only that that the The cases reasonable a reasonable See Brooks passed v a a willing to v to go performance of the contract purchaser there would have been Therefore I ten implicit or explicit a tender of title to the place and time same purchaser before declaring interpreting the tender of title be set and do not engraft a provision requirement place where the act of sale might have been case La to send App 1st Cir 1976 a registered Luna v Luna It would have letter to the purchaser place for the closing and then appearing there ready and or at the office of a at the seller s or notary chosen by the seller a through with the purchase if possible and also in order to forestall decide to retain doubt that the There is provision is in the agreement in order to allow the purchaser exactly this type of litigation no that date proceed with the sale That reasonable place may have been opportunity it passed after apply to sales of passed before the purchaser s notary affects the 325 So 2d 835 839 reasonable time and The tender of title should were v to pay realtor s Shipp 481 So 2d 655 658 La App 1st Cir 1985 purchaser s place of business final certain date did not I do not believe that either an simple matter for the seller in this setting obligation concerning whether the sale of the second us from this court place be the Atchafalaya Realty Inc been a See Baldwin passed before the purchaser s notary as a matter Moreover that date contractual 1958 properties described in the agreement which specification no La on only sale set to close no The provision is the purchaser s deposit instead a clear statement of the seller of s obligation demanding specific Had the tender of title been made there would have been was unable or unwilling to fulfill its purchase obligation and doubt that the seller had the respectfully dissent right to retain the deposit STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2008 CA 2534 TANGI HOMES PROPERTIES VERSUS VIOLA HOMES INC AND BONE CAPITAL INVESTMENTS McCLENDON J As dissents and matter of law the a and reasonable time and assigns reasons requirement is to comply with his or her contractual obligation without and useless act commenting provide the buyer on or an to declare his or do not find 417 So 2d 24 whether I believe there should be Young distinguishable La App 1 Cir 1982 Therefore I The to her refusal to do exception to the requirement of tender of title Young v Koehl definite explicit opportunity jurisprudence of this circuit unlike the fourth circuit rejects such See a place be set for the passing of the act of sale a Further provision requires that tender of title purpose of such so INC a vain the current an Unlike the respectfully dissent exception majority I
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