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 2010 CA 0238 PLEASURE BEACH L C VERSUS DARRYL SMITH Judgment Rendered SFP 1 3 2010 Appealed from the TwentySecond Judicial District Court In and for the Parish of St Tammany State of Louisiana Suit Number 2005 14552 Honorable William J Crain Presiding esMEMMEMa G n Jesse L Wimberly III Jesse L Wimberly IV Mandeville LA Counsel for Plaintiff Appellee T Jay Scales III Counsel for Defendant Appellant Darryl Smith Pleasure Beach L C V1 Russell W Rudolph Hammond LA F1111 Nita R Gorrell Hammond LA MazwWw3 BEFORE PARRO GUIDRY AND HUGHES JJ GUIDRY J In this action seeking specific performance of a contract to purchase and sell immovable property the defendant Darryl Smith appeals from the judgment of the trial court in favor of plaintiff Pleasure Beach L ordering specific C performance of the purchase agreement and ordering that the sale of the property occur within thirty days of notice of judgment For the reasons that follow we affirm FACTS AND PROCEDURAL HISTORY On June 15 2005 Darryl Smith and Pleasure Beach L Pleasure C Beach entered into an agreement to purchase and sell real property consisting of approximately 145 acres in St Tammany Parish According to the agreement Smith was to purchase the property from Pleasure Beach for 640 within thirty 000 days following expiration of a ninetyday inspection period On October 12 2005 Pleasure Beach forwarded a letter to the closing attorney indicating that it had not received instructions from the attorney as to the date and time for the sale The letter further indicated that if Smith did not purchase the property at issue by October 12 2005 be would be in default under the terms and conditions of the purchase agreement Because it was Pleasure Beach understanding at that time s that Smith did not wish to go forward with the purchase the letter concluded by stating that it was to serve as a formal notice of default Thereafter on October 24 2005 Pleasure Beach filed a petition for specific performance and damages requesting that the court issue a judgment ordering Smith to purchase the subject property for the price outlined in the purchase agreement and to pay legal interest attorney fees and ancillary damages Smith answered Pleasure Beach petition and raised four defenses to the action s including failure of cause unmerchantability of title change in value of the property and extension of the inspection period On September 7 2006 Pleasure 2 Beach filed a motion for summary judgment asserting that Smith defenses were s without merit and that Pleasure Beach was entitled to summary judgment as a matter of law Following a hearing on Pleasure Beach motion the trial court rendered s judgment in favor of Pleasure Beach granting its motion ordering Smith to purchase the subject property within thirty days of the date of signing of the judgment and awarding legal interest from the date of judicial demand until paid on the purchase price of 640 plus reasonable attorney fees and costs 000 s Smith appealed from the trial court judgment and in Pleasure Beach L v s C Smith 07 0823 La App 1st Cir 12 2107 opinion writ denied 08 unpublished 0641 La 5 980 So 2d 696 this court found based on the evidence 08 9 contained in the record that a genuine issue of material fact existed as to whether there was failure of cause of the purchase agreement and reversed the trial court s judgment granting the motion for summary judgment in favor of Pleasure Beach The matter was remanded to the trial court for further proceedings Thereafter the parties proceeded to trial following which the trial court signed a judgment in favor of Pleasure Beach and against Smith ordering specific performance of the purchase agreement and ordering the sale of the property to occur within thirty days of notice of judgment Smith now appeals from this judgment DISCUSSION In Louisiana appellate courts review both law and facts La Const Art V Sec 10 B The applicable standard of review for a factual finding is the This court specifically noted that Pleasure Beach had asserted many facts regarding Mr Smith s knowledge his exercise of due diligence during the inspection period and the viability of commercial use of the property and had attached several documents purporting to support those facts to its original memorandum in support of its motion for summary judgment and its rebuttal memorandum However because these documents were not sworn to or certified nor were they attached to a deposition or affidavit we found they were not of sufficient evidentiary quality as to be afforded any weight on the motion for summary judgment Pleasure Beach L v C Smith 07 0823 La App 1st Cir 1221 07 opinion unpublished 3 manifestly erroneous or clearly wrong standard To reverse a factfinder s determination under this standard of review an appellate court must undertake a twopart inquiry 1 the court must find from the record that a reasonable factual basis does not exist for the finding of the trier of fact and 2 the court must further determine the record establishes the finding is clearly wrong Stobart v State Department of Transportation and Development 617 So 2d 880 882 La 1993 Ultimately the issue to be resolved by the reviewing court is not whether the trier of fact was right or wrong but whether the factfinder conclusion was a s reasonable one Stobart 617 So 2d at 882 If the factual findings are reasonable in light ofthe record reviewed in its entirety a reviewing court may not reverse even though convinced that had it been sitting as the trier of fact it would have weighed the evidence differently Stobart 617 So 2d at 882 883 Accordingly where there are two permissible views of the evidence the factfinder choice between them s cannot be manifestly erroneous Stobart 617 So 2d at 883 Nonetheless where documents or objective evidence so contradict a s witness story or the story itself is so internally inconsistent or implausible on its face that a reasonable factfinder would not credit the witness story a reviewing s court may well find manifest error Rosell v ESCO 549 So 2d 840 844 845 La 1989 Where such factors are not present however and a factfinder s determination is based on its decision to credit the testimony of one of two or more witnesses that finding can virtually never be manifestly erroneous or clearly wrong Rosen 549 So 2d at 844 845 The credibility determinations of the trier of fact are subject to the strictest deference under the manifest error clearly wrong standard Theriot v Lasseigne 93 2661 La 7630 So 2d 1305 1313 94 5 On appeal Smith asserts that Pleasure Beach is not entitled to specific performance of the purchase agreement because the title is not merchantable there was a failure of cause or mutual error in the cause of the contract there was a in shortage in acreage and Pleasure Beach abandoned its rights under the contract by entering into a second purchase agreement with a third party Our review of the record reveals that the trial court was presented with conflicting testimony as to the knowledge of the parties during the real estate transaction at issue As is evident from the trial court reasons for judgment it s chose to credit the testimony presented by Pleasure Beach finding that Smith either directly or through his agents had knowledge of the dredging and lake bottom ownership issue concerning the property This is a reasonable determination based on the record in its entirety and therefore we find Smith s arguments as to failure of cause error and shortage of acreage to be without merit Further with regard to merchantability of title the trial court found that the portions of the property inundated by water were subject to reclamation pursuant to La R 41 et seq and that had Smith proceeded to sale he would have S 1701 acquired those rights from Pleasure Beach citing La Const Art IX Sec 3 and La S 1702 R 41 The record supports the finding that Smith was aware that the majority of the land he was purchasing was under water as evidenced by his visual inspections of the property and his purchase of two similar lots in a separate transaction and was also aware that the land under Lake Pontchartrain would need to be reclaimed for his intended purpose Any statutory restriction on reclamation for commercial purposes was according to the trial court a feasibility or suitability issue which Smith should have resolved during the ninetyday inspection period The record demonstrates that Smith a sophisticated buyer who had been in the multi family real estate business for over twenty years was given an opportunity to have the land surveyed met with an engineering firm regarding his proposed project and met with local governmental officials At no time did Smith invoke the title curative provisions by notifying Pleasure Beach of any title defects Rather he told his agent Joe Kramer to proceed with the agreement to purchase 5 Further though Smith cites a letter questioning bridge access after Hurricane Katrina the access issue was resolved by November 24 2005 within any purported curative period and yet Smith still failed to close on the property The trial court made clear in its reasons for judgment that t factual he circumstances of this case are critical to the Court findings From our review of s the record we cannot say that the trial court was manifestly erroneous in finding that the reclamation process would not affect the merchantability of title under the circumstances of this case Finally as to Smith argument that Pleasure Beach abandoned its rights s under the purchase agreement because it entered into a second purchase agreement with a third party the trial court specifically found that neither Smith nor anyone on his behalf ever notified Pleasure Beach of any merchantability of title problems nor did he or anyone on his behalf ever notify Pleasure Beach that he was invoking the title curative provisions of the purchase agreement The trial court stressed that the purchase agreement had no provision for title insurance had no contingency for financing and had no contingency for obtaining permits all of which were issues raised in the letter concerning bridge access Because the title curative provisions were not invoked and Smith was placed in default on October 12 2005 any argument that Pleasure Beach had abandoned its rights under the contract by thereafter entering into a purchase agreement with a third party is without merit Accordingly we find no error in the trial court determination that Smith s failed to establish a defense for his nonperformance under the purchase agreement and that Pleasure Beach is entitled to specific performance We further adopt and attach hereto the trial court written reasons for judgment which s correctly and succinctly set forth the facts and legal issues involved in this case See attached written Reasons for Judgment l CONCLUSION For the foregoing reasons we affirm the judgment ofthe trial court ordering specific performance of the purchase agreement All costs of this appeal are assessed to appellant Darryl Smith We issue this memorandum opinion in compliance with Uniform Rules Courts of Appeal Rule 2 16 1B AFFIRMED 7
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