WELCH, J.
The plaintiff/appellant, Edwin Pearson ("plaintiff"), appeals a December 11, 2014 judgment of the trial court, which dismissed his claims against the defendants/appellees, Jack A. Blossman, Sr., J.A.B.T.F., Inc., and Tammany Holding Corporation ("THC").
The claims herein arise out of the plaintiff's purchase from J.A.B.T.F. of a 7.3 acre piece of undeveloped commercial property (referred to as "Parcel 2-B") located at the entrance to Lakeshore Estates subdivision in Slidell, Louisiana. The plaintiff contends that he received implicit and express assurances from J.A.B.T.F.'s representative, Blossman, that the property he was purchasing would have approximately 1,000 feet of frontage adjacent to a proposed boulevard providing ingress and egress to the subdivision. The developer of Lakeshore Estates and J.A.B.T.F.'s ancestor-in-title to Parcel 2-B, THC, owned the adjacent property upon which the proposed boulevard was to be constructed. However, following the plaintiff's purchase of the property, the location of the proposed boulevard was modified by the placement of a 50-foot wide and 1,000-foot long landscape buffer between the boulevard and the plaintiff's property line. The modification of the boulevard location resulted in the plaintiff's property being denied frontage on and access to the boulevard. The plaintiff claims the resulting lack of frontage on the boulevard and access thereto destroyed the marketability and value of his property.
On September 10, 1999, the plaintiff filed the instant suit against Blossman, J.A.B.T.F., THC, and THC's sole owner, Robert L. Torres ("Torres"). The petition alleged claims of inducement against J.A.B.T.F. and Blossman. The plaintiff claimed that he was induced to purchase the property based upon verbal and written assurances regarding the location of and access to the proposed boulevard made by Blossman, individually, and as the representative of J.A.B.T.F. Also, the petition alleged claims for breach of verbal and express written warranties that the boulevard would be constructed adjacent to Parcel 2-B.
The plaintiff asserted claims for fraud and violations of the Louisiana Unfair Trade Practices Act ("LUTPA")
Other pleadings filed in this action include a reconventional demand filed by THC and Torres, prior to his dismissal, against the plaintiff asserting a defamation claim and seeking attorney's fees. Also, Blossman and J.A.B.T.F. each filed separate cross-claims against Torres and THC, averring that the relocation of the boulevard took place without their consent and was the result of actions beyond their control.
Following protracted preliminary litigation, a bench trial was held on October 23 and 24, 2014. In a judgment signed December 11, 2014, the trial court dismissed all of the plaintiff's claims against Blossman, J.A.B.T.F., and THC. The judgment expressly dismissed THC's defamation claims, but is silent as to Torres' individual defamation claims.
In August of 1996, THC purchased approximately 3,000 acres of vacant lowland with frontage on Lake Ponchartrain. THC purchased the property for the purpose of developing Lakeshore Estates as an upscale residential community consisting of amenities such as man-made lakes and a marina on Lake Ponchartrain. THC immediately sold two parcels totaling 62.16 acres for $1,500,000.00 to J.A.B.T.F. One of the two parcels conveyed to J.A.B.T.F. was the 7.3 acre parcel (Parcel 2-B) at issue herein.
When Parcel 2-B was conveyed to J.A.B.T.F., it had existing frontage of approximately 317.79 feet on the East I-10 Service Road. Oak Harbor Boulevard, an existing public road intersecting the East I-10 Service Road, terminated at what would later become the entrance of Lakeshore Estates.
Shortly after acquiring the property, J.A.B.T.F. retained Larry Haik, a commercial real estate agent, to market the 62.16 acres, including Parcel 2-B. The plaintiff, a fireworks retailer and licensed real estate agent, had previously expressed interest in the property to Torres. Haik, knowing of plaintiff's interest, approached the plaintiff regarding the purchase of Parcel 2-B. Parcel 2-B was sold unfilled; therefore, the plaintiff's initial plan was to use the property as a location for fireworks sales until he could obtain the funds necessary to fill and develop the property. Both Haik and the plaintiff testified that it was their understanding Parcel 2-B would have 1,000 feet of frontage on and access to the proposed boulevard based on their review of various preliminary plats of the subdivision plan. Haik and the plaintiff further understood that Parcel 2-B's frontage and access to the boulevard was the basis for justifying the $800,000.00 purchase price being asked for the property.
A purchase agreement was executed on August 11, 1997. Blossman requested the following condition be added to the purchase agreement regarding the obligation of the owner of Parcel 2-B to contribute funds for the construction of the proposed boulevard:
The plaintiff received two extensions on the purchase agreement in October of 1997. The second extension of the purchase agreement, dated October 29, 1997, also granted the plaintiff the right to make improvements to Parcel 2-B for the purpose of setting up a tent to sell fireworks pending completion of the property sale.
Prior to the plaintiff's closing on the purchase of Parcel 2-B, Torres learned of the plaintiff's plans to sell fireworks. Torres strongly objected to the plaintiff's plan to operate a fireworks stand in the vicinity of the entrance of the upscale Lakeshore Estates and expressed his objections to both Blossman and Haik. Haik arranged a meeting between plaintiff and Torres to address the situation. On November 5, 1997, Haik and the plaintiff met with Torres.
In an audio recording of the November 5, 1997 meeting made by the plaintiff, without Torres' knowledge, Torres unequivocally stated that THC owned and controlled the property where the proposed boulevard would be located. Torres expressly stated the ultimate location of the proposed boulevard shown on preliminary plats was controlled by him and the location could be moved at his discretion. Torres emphatically told the plaintiff and Haik that he would "never, never" dedicate the property adjacent to the plaintiff's property for a street if the plaintiff went forward with his plan to sell fireworks on Parcel 2-B.
In a letter dated November 6, 1997, the plaintiff provided notice to Blossman of the details of his meeting with Torres. The plaintiff testified that during a subsequent meeting, Blossman assured the plaintiff that "there was no way [Torres] could move that boulevard" and cited his 35% partnership interest in a development project with Torres as the basis for his influence. The plaintiff contends these particular statements led him to believe Blossman had sufficient control or influence over Torres to assure the location of the proposed boulevard. According to the plaintiff, Blossman's statements constituted an enforceable verbal guarantee.
On November 10, 1997, the plaintiff sent a letter to Blossman indicating his willingness to place certain restrictions on the property, if Torres was amenable. The plaintiff's letter contains the following request directed at Torres and/or THC:
The notarized document requested by the plaintiff was never executed by any of the defendants. Prior to purchasing Parcel 2-B, the plaintiff again attempted to obtain assurances from THC through Torres guaranteeing that Parcel 2-B would be adjacent to the proposed boulevard, via a written "Agreement" presented to Torres. However, the proposed "Agreement" was never executed by Torres or THC. Over the course of the 1997-1998 holiday season, the plaintiff sold fireworks from a tent on Parcel 2-B, despite knowing of Torres' objections and without a permit by the parish to sell fireworks at that location.
In early 1998, the plaintiff and Blossman executed a credit sale.
In July of 1999, THC dedicated property to the parish for the construction of the proposed boulevard. In the dedication, THC retained ownership of a 50-foot wide and 1,000-foot long piece of property adjacent to Parcel 2-B. On August 10, 1999, the final subdivision review for Lakeshore Estates, Phase 1, was conducted at a meeting of the St. Tammany Parish Planning Commission. The tentative plat presented for final approval at the August 10, 1999 meeting evidenced the 50 foot wide and 1,000 foot long parcel placed between Parcel 2-B and the proposed boulevard. The plaintiff's attorney appeared at the public meeting and provided testimony on the plaintiff's behalf. The planning commission ultimately approved the proposed design contained in the tentative plat, and the boulevard was built accordingly.
The plaintiff urges five assignments of error for this court's review. First, the plaintiff contends the trial court erred as a matter of law by not interpreting what he contends is an ambiguous warranty provision in the sale document in favor of the plaintiff under La. Civ. Code art. 2474. Second, due to the boulevard not being constructed adjacent to Parcel 2-B, the plaintiff asserts the trial court erred in not finding a breach of the written warranty by Blossman and J.A.B.T.F. Third, the plaintiff asserts the trial court erred in not finding that he was a competitor of THC under LUTPA. The plaintiff's fourth assignment of error challenges the trial court's factual finding that the location of the boulevard was the decision of the parish, not THC. Finally, the plaintiff asserts error by the trial court in failing to find THC's actions related to modification of the boulevard constituted a violation of LUTPA. The plaintiff does not challenge the dismissal of his fraud claims.
THC and Torres filed an "appellee brief" wherein they assert the trial court erred in dismissing their claims for attorney's fees and defamation and seek reversal of the trial court's finding. However, the failure of THC and Torres to file an answer to the appeal, as required by La. Code Civ. P. art. 2133, precludes our review of these claims.
We first address the plaintiff's two assignments of error relating to the trial court's dismissal of his claims for breach of warranty against Blossman and J.A.B.T.F.
The determination regarding whether a contract is clear or ambiguous is a question of law.
A contract is formed by the consent of the parties established through offer and acceptance. La. Civ. Code art. 1927. A party who signs a written instrument is presumed to know its contents and cannot avoid its obligations by contending that he did not read it, that he did not understand it, or that the other party failed to explain its meaning.
Interpretation of a contract is the determination of the common intent of the parties. La. Civ. Code art. 2045. When the words of a contract are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties' intent. La. Civ. Code art. 2046. Each provision in a contract must be interpreted in light of the other provisions so that each is given the meaning suggested by the contract as a whole.
The plaintiff contends that the trial court erred in its interpretation of the following contract provision in the sale document between J.A.B.T.F. and the plaintiff:
The plaintiff maintains said provision was added at the closing at his request for the purpose of guaranteeing Parcel 2-B access to the proposed boulevard. The plaintiff testified he told Blossman he would not sign the sale document without such a guarantee. In contrast, Blossman acknowledged he had his lawyer insert the provision, but testified the provision was added to the sale document at his request for his protection and as an acknowledgement of his oral agreement with Torres. We note Blossman added similar language to the purchase agreement for his protection, prior to the dispute arising between Torres and the plaintiff.
On appeal, the plaintiff argues the contract provision is undoubtedly ambiguous, and the trial court erred in not interpreting the contractual provision against the seller, J.A.B.T.F., as required under La. Civ. Code art. 2474. Louisiana Civil Code article 2427 provides a "seller must clearly express the extent of his obligations arising from the contract, and any obscurity or ambiguity in that expression must be interpreted against the seller." The plaintiff offers an alternative interpretation in support of his position, wherein he contends the provision contains the stand alone, affirmative declaration that the boulevard would be built next to Parcel 2-B, with two separate conditional provisions relating to the obligation to contribute to the payment of construction costs, depending on whether the parish did or did not participate in the boulevard's construction.
The trial court did not find the contract provision ambiguous. The trial court interpreted the words, "if constructed as anticipated by the parties[,]" to mean that if Parcel 2-B obtained access to the boulevard, then the owner of Parcel 2-B would pay 25% of the construction costs of the boulevard, up to $40,000.00. The trial court concluded the agreement was not a guarantee of access to the road, but a statement outlining the plaintiff's responsibility for construction costs in the event the boulevard was constructed.
The trial court considered both the language of the provision and the facts surrounding the negotiation and sale of Parcel 2-B. The trial court noted the plaintiff's meeting with Torres as well as the plaintiff's failed attempts to secure a written guarantee of frontage from Torres and THC, as facts undermining the plaintiff's assertions regarding his belief regarding Blossman's influence over Torres and/or control over the ultimate location of the boulevard. The trial court found these facts supported a finding that the plaintiff could not logically rely on his assumption that Blossman could provide a warranty regarding the location of the boulevard. The trial court also questioned the failure of the plaintiff to include in the sale document the warranty language he had previously presented to Torres and THC in the unexecuted "Agreement." The trial court found Blossman's testimony credible regarding the events surrounding the sale of Parcel 2-B, including his testimony that he did not provide a verbal guarantee to the plaintiff regarding access to the property; he had no influence over Torres; and his testimony that the provision in the sale document was not an express guarantee.
We find no legal or factual error in the trial court's ruling. Louisiana Civil Code article 1767 provides that if the obligation cannot be enforced until an uncertain event occurs, the condition is suspensive. We find the phrase "and if constructed as anticipated" represents a suspensive condition, which modifies the declaration stating a new road is to be constructed adjacent to Parcel 2-B. In particular, the phrase "and if" in this context connotes uncertainty. Webster's Ninth New Collegiate Dictionary (1991) offers the following definitions of the word "if': "in the event that," "allowing that," and "on the condition that." The provision at issue herein contains no express assurances regarding Parcel 2-B's right of access to the boulevard; instead, the provision focuses on the possible obligation of the buyer of Parcel 2-B to contribute a portion of the costs associated with the construction of a boulevard adjacent to Parcel 2-B. Based on the above-discussed considerations, we find the trial court did not err in dismissing the plaintiff's breach of warranty claims against J.A.B.T.F. and Blossman.
We now turn to the plaintiff's third, fourth, and fifth assignments of error challenging the trial court's dismissal of his LUTPA claims against THC.
A court of appeal may not set aside a trial court's finding of fact in the absence of "manifest error" or unless it is "clearly wrong."
Louisiana Revised Statutes 51:1405(A) prohibits any "unfair or deceptive acts or practices in the conduct of any trade or commerce." Louisiana Revised Statutes 51:1409(A) grants a right of action to "[a]ny person who suffers any ascertainable loss" from a violation of this prohibition. Although business consumers and competitors are included in the group afforded this private right of action, they are not its exclusive members.
The Louisiana Supreme Court has found that the range of prohibited practices under LUTPA to be extremely narrow, citing with favor the following explanation of the scope of LUTPA from the federal Fifth Circuit:
Id. at 1060.
It has been left to the courts to determine what constitutes a LUPTA violation on a case-by-case basis.
Here, the plaintiff maintains sufficient evidence was produced at trial to prove his claim against THC for unfair trade practices; therefore, the trial court's dismissal of his LUTPA claims was in error. In particular, the plaintiff contends the trial court erred in failing to make the following findings of fact: the plaintiff and THC were competitors for purposes of LUTPA; the decision to block Parcel 2-B's access to the boulevard was made by THC, not the parish; and THC's actions were intended solely to destroy the plaintiff's property value and constituted an unfair trade practice that offends established public policy.
The Louisiana Supreme Court has held any persons injured by unfair trade practices have standing to seek recovery under LUTPA. Id. The focus in a LUTPA claim is whether a plaintiff has met his burden of proving egregious acts amounting to unfair trade practices, regardless of the plaintiff's status as a competitor or otherwise. Id. Here, although the plaintiff contends that the trial court erred finding that the plaintiff and THC were not competitors, this factual finding is immaterial to the ultimate issue, namely, whether the trial court erred in dismissing the plaintiff's LUPTA claims. Accordingly, we find no merit in the plaintiff's third assignment of error based upon the record.
With regard to his fourth assignment of error, the plaintiff contests the trial court's finding that the installation of the landscape area adjacent to Parcel 2-B was the decision of the parish. The plaintiff contends THC, not the parish, conceived and designed the modified plan. In support of his position, the plaintiff asserts the property description in the act of donation by THC to the parish compresses the right of way and results in the exclusion of the 50-foot landscape buffer adjacent to Parcel 2-B. The plaintiff argues the tentative plat submitted at the August 10, 1999 planning commission meeting containing the modified boulevard was created and submitted by THC. Finally, the plaintiff contends his position is supported by the fact that the installed landscape buffer reflects the threats made by Torres during the November 5, 1997 meeting.
Torres testified that the parish planning commission and the police jury recommended and approved the placement of the landscape buffer on the south side of the boulevard adjacent to Parcel 2-B. Torres testified the parish was not interested in maintaining the landscape buffer area after dedication, and THC retained ownership of the area for beautification. According to Torres, the parish determined the final configuration of the boulevard. The buffer area was added with the intent of ensuring that the new extension to Oak Harbor Boulevard aligned with the existing boulevard; thus, eliminating a need to modify or relocate the alignment line of the boulevard during construction. Based on the evidence presented, we find the trial court had a reasonable factual basis to conclude that the parish, not THC, recommended the modification of the boulevard. Accordingly, the plaintiff's fourth assignment of error is without merit.
Regardless, even if THC was the party who enacted the modification of the boulevard to include the landscape buffer, the record amply supports the trial court's dismissal of the plaintiff's LUTPA claims. The plaintiff was in the best position to ensure his own access and frontage on the boulevard. The plaintiff was aware prior to purchasing the property that THC was neither obligated nor committed to building the boulevard adjacent to Parcel 2-B. The plaintiff, a businessman and licensed real estate agent, proceeded with the purchase of Parcel 2-B despite being expressly told by Torres that no access to the boulevard would be provided if he went forward with his fireworks stand. The plaintiff also attempted and failed to secure written assurance of his access to the boulevard from the developer, knowing that final approval of the development plans was pending. Thus, it cannot be said the plaintiff was misled. Moreover, the plaintiff always had the option to simply not purchase the property. We find a reasonable factual basis exists for the trial court's finding that THC's actions did not rise to the level of offending established public policy or were immoral, unethical, oppressive, unscrupulous, or substantially injurious as required to support a claim under LUPTA.
For the above reasons, we affirm the December 11, 2014 judgment of the trial court dismissing the claims of Edward Pearson against the defendants, Jack A. Blossman, Sr., J.A.B.T.F., Inc., and Tammany Holding Corporation. All costs of this appeal are to be paid by appellant, Edward Pearson.
In November of 1998, Blossman filed a declaratory judgment against Torres after a dispute arose over whether a partnership/joint venture existed in connection with the 1,000 acres. Torres and Blossman later settled the matter out of court with Torres paying Blossman $500,000.00 in exchange for Blossman relinquishing his claim of holding a 35% interest in the 1,000 acres.
