McCLENDON, J.
This appeal involves the continuing dispute over a backup purchase agreement for the sale of an approximately 13.7-acre tract of land in Gray, Louisiana. The current judgment appealed from awarded attorney fees, interest, and costs to two of the parties. For the reasons that follow, we amend and affirm, as amended, the judgment of the trial court.
This litigation began when Henry J. Richard filed suit for damages and for specific performance of his agreement to purchase property owned by Joyce Breaux McElroy and Carolyn Breaux (sellers). Named as defendants were the sellers; the listing real estate agency, Houma's Town & Country Real Estate, Inc. (Town & Country); its insurer, Continental Casualty Company (Continental); the real estate agency's owner and broker, Bill G. Boyd; the listing agent for the property, Faith Boudreaux; the buyer of the property, West Park Partners, L.P. (West Park); and Harold and Verlyn Foley, who held a purchase agreement dated prior to Mr. Richard's.
After Mr. Richard filed suit, various incidental demands were filed. The sellers filed a reconventional demand against Mr. Richard and a third party demand against Town & Country, Mr. Boyd, and Ms. Boudreaux (realtors). Howard Trahan, Beverly Marcel, and their children, Seth Joseph Trahan and Keith John Boudreaux (intervenors), filed an intervention against Mr. Richard, the sellers, and the realtors, claiming damages from a cancelled closing on a house that was located on the sellers' property.
On the third day of the trial on the merits of the specific performance claim, and after plaintiff rested his case, the realtors moved for an involuntary dismissal of Mr. Richard's claims. The sellers also moved for dismissal, as did the Foleys and West Park. In oral reasons for granting the motions, the trial court found that there was no meeting of the minds between Mr. Richard and the sellers primarily because: (1) the parties used a form entitled a "Land" purchase agreement, (2) the price was not clear in the Richards/sellers purchase agreement, (3) the good faith deposit check had not technically been "received" because Town & Country had not deposited the check in its escrow account, and (4) the inclusion in the counteroffer by the sellers of the date of January 31, 2006, was not a clear deadline for the Foley agreement and did not act as a waiver of the sellers' discretion to grant the Foleys extensions after that date. The trial court also found that Mr. Richard had not offered proof that the house was an immovable, rather than a movable, and, therefore the house was not a component part of the land and was not included in the purchase agreement.
By judgment dated March 14, 2007, the trial court held that the agreement to purchase between Mr. Richard and the sellers was unenforceable, that Mr. Richard had no right of ownership in the property, and that the notice of lis pendens was invalid. The judgment cancelled the notice in the public record and dismissed the claim for specific performance, as well as all claims for damages asserted by Mr. Richard against the Foleys, West Park, and the sellers. Additionally, by judgment dated March 21, 2007, Town & Country, Mr. Boyd, Ms. Boudreaux, and Continental (real estate defendants) were dismissed from the suit, and in a judgment dated March 26, 2007, the trial court rendered a judgment on the incidental demands, awarding damages to the sellers and intervenors.
Three related appeals arose from these judgments.
After the decisions of the court of appeal, the trial on the merits continued on November 16 and 17, 2009, but was continued by the trial court on the motion of the realtors, on the grounds that their attorney had a conflict of interest between his insureds and his insurer. Thereafter, trial recommenced on January 23, 2012, and continued on January 24, 25, and 26, 2012.
In oral reasons on January 26, 2012, the trial court concluded that the realtors engaged in substandard conduct that was the actual cause of Mr. Richard's belief that he had an enforceable purchase agreement on February 1, 2006. While the court found "error, negligence, [and] omissions" on the part of the realtors, it found no fraud. The trial court specifically stated that the realtors were negligent for not excluding the house from the purchase agreement and for not clarifying a date on which Mr. Richard's contract would be enforceable. The trial court, however, also determined that Mr. Richard did not prove that he suffered any damages by not purchasing the property, finding the testimony of the seller's expert real estate appraiser, Brian Larose, to be more credible than the testimony of Mr. Richard's expert real estate appraiser, Logan Babin, Jr. The trial court concluded that Mr. Larose's appraisal was clearly the more accurate, and, therefore, found that the value of the property at the time of the proposed sale was $244,000.00. Accordingly, the trial court found that Mr. Richard suffered no damages related to the proposed sale, since he offered $250,000.00 for the purchase price.
In accordance with its reasons, the trial court signed its judgment on March 1, 2012, in favor of Mr. Richard against the real estate defendants, awarding Mr. Richard $62,754.50 in attorney fees, together with legal interest from date of judicial demand and court costs. All other claims of Mr. Richard were dismissed. Additionally, the trial court rendered judgment in favor of the sellers against the real estate defendants in the amount of $56,536.00 in attorney fees, with interest and court costs. The trial court also dismissed all claims of the intervenors and sellers against Mr. Richard.
Mr. Richard devolutively appealed and the real estate defendants filed a suspensive appeal. Additionally, the sellers answered Mr. Richard's appeal and answered the appeal of the real estate defendants, and Mr. Richard answered the appeal of the real estate defendants.
It is well settled that 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.
In their appeal, the real estate defendants contend that: (1) the trial court erred in finding Mr. Richard's purchase agreement valid; (2) the trial court erred in finding that the realtors were negligent and in failing to allocate fault to all parties; (3) the trial court erred in its award and amount of attorney fees to Mr. Richard and to the sellers; and (4) the trial court erred in awarding legal interest and costs to Mr. Richard and to the sellers.
The realtors first contend that the trial court committed legal error because it incorrectly believed that, after remand by this court, it was constrained to find a valid purchase agreement between Mr. Richard and the sellers. However, our prior opinion in this matter provided at footnote 5: "Although we have determined the legally correct interpretation of the contract provisions at issue, the defendants on remand maintain their right to challenge the validity of the agreement and present their side of the story by submitting any evidence allowable under the law."
Following the remand of this matter and another three days of testimony and evidence, during which time the real estate defendants had the opportunity to present whatever evidence they could to show that the backup purchase agreement was invalid, the trial court concluded that a valid agreement between Mr. Richard and the sellers did exist. Upon our thorough review of the record, we find no manifest error in the trial court's finding of fact, after the case was remanded and the trial completed, that there was a valid purchase agreement.
The real estate defendants also aver that the trial court erred in finding that they were negligent and solely at fault in this matter.
A real estate broker is a professional who holds himself out as trained and experienced to render a specialized service in real estate transactions. The broker stands in a fiduciary relationship to his client and is bound to exercise reasonable care, skill, and diligence in the performance of his duties.
In this matter, the sellers contracted with the defendant realtors to act as their agents and handle the listing and sale of the subject property. A review of the record supports the trial court's conclusion that the defendant realtors failed to exercise reasonable care, skill, and diligence in the performance of their duties, particularly in how they responded on behalf of the sellers to the backup purchase offer, by the advice or lack of advice they gave the sellers regarding the first and second extensions to the original purchase agreement between the sellers and the Foleys, and their failure to communicate important information to the sellers. The trial court heard and saw all the witnesses and attributed all fault to the realtors. A reasonable factual basis exists for this finding, and we, therefore, find no manifest error by the trial court.
The real estate defendants also contend that they cannot be liable for attorney fees because there was no contractual provision providing for the recovery of attorney fees to the sellers from the realtors, and that no statute exists providing for such an award of attorney fees.
As a general rule, rule, Louisiana law, attorney fees are not allowed except where authorized by statute or by contract.
In the
The real estate defendants next argue that the trial court erred in assessing legal interest against them. They assert that because the sellers did not request legal interest on an award of attorney fees, they are not entitled to same.
Pursuant to LSA-C.C.P. art. 1921, "[t]he court shall award interest in the judgment as prayed for or as provided by law." Moreover, as set forth in LSA-R.S. 13:4203, legal interest shall attach from date of judicial demand, on all judgments sounding in damages ex delicto that may be rendered by any of the courts. The language of this statute is mandatory.
Lastly, the real estate defendants maintain that the sellers are not entitled to court costs, and the trial court erred in awarding court costs against them. The general rule is that costs are to be paid by the party cast in judgment. LSA-C.C.P. art. 1920
The real estate defendants contend that the sellers were not the prevailing parties since they were not awarded damages, but were only awarded attorney fees. Because we have already found that the damages suffered by the sellers were the attorney fees incurred by them, we find no abuse of discretion in its assessment of costs.
The real estate defendants also maintain that the trial court erred in finding that they were liable to Mr. Richard, and they contest the award of attorney fees, legal interest, and costs to Mr. Richard.
A purchaser's remedy against a real estate broker is limited to damages for fraud under LSA-C.C. art. 1953, et seq., or for negligent misrepresentation under LSA-C.C. art. 2315.
The action for negligent misrepresentation arises ex delicto, rather than from contract. In order for a plaintiff to recover for negligent misrepresentation, there must be a legal duty on the part of the defendant to supply correct information, a breach of that duty, and damage to the plaintiff caused by the breach.
Whether a defendant has breached a duty is a question of fact and such a factual determination of the trial court may not be reversed in the absence of manifest error or unless it is clearly wrong.
In this case, the realtors did not communicate to either the sellers or to Mr. Richard complete and accurate information regarding the extensions granted to the first contract or the expiration of the first contract. Upon our review of the record, we cannot find that the trial court was manifestly erroneous in its finding that the realtors breached their duty to supply correct information to Mr. Richard. Accordingly, this assignment of error is without merit.
The real estate defendants also contend that the trial court erred in its award of attorney fees, legal interest, and costs to Mr. Richard: For the same reasons previously discussed with regard to the sellers, we find no error in these awards to Mr. Richard.
In his appeal, Mr. Richard contends that: (1) the trial court committed legal error, requiring a de novo review on appeal; (2) the trial court erred in failing to award him damages other than attorney fees; (3) the trial court erred in failing to allow his expert to testify regarding certain matters, and erred in instead relying on the testimony of the sellers' expert witness; (4) the trial court erred in failing to cast judgment against the sellers, who were the parties that contracted with Mr. Richard; and (5) he is entitled to additional attorney fees on appeal and to his expert witness fees.
Mr. Richard initially argues that this case requires de novo review based on the trial court's legal error in excluding key portions of his expert's testimony without conducting a
Under the Louisiana Code of Evidence, a witness qualified as an expert by "knowledge, skill, experience, training, or education" should be allowed to testify if his "scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue." LSA-C.E. art. 702;
Clearly,
Mr. Richard argues that his expert showed that the property at issue was worth anywhere from $60,000.00 to $105,000.00 per acre. He contends that the value of commercial properties in the northern part of Terrebonne Parish escalated tremendously after Hurricane Katrina and that he suffered severe damages as a result of the sellers failing to sell the property to him. In connection therewith, Mr. Richard tried to introduce testimony from Mr. Babin regarding the value of property adjacent to the subject property, which sold for $105,000.00 per acre on May 22, 2008. Defense counsel objected, contending that sales long after any alleged breach of the backup contract were not relevant. The trial court sustained the objection, finding that only sales around the time the sale was supposed to happen, or between January and March of 2006, were relevant.
The measure of damages for the breach of a contract of sale is the difference between the contract price and the market price on the date of the breach.
Mr. Richard also maintains that the trial court erred in excluding Mr. Babin's testimony concerning the value of the subject property on May 1, 2006. The record shows that Mr. Babin was asked to determine the value of the property on January 5, 2007, dose to the first scheduled date of the first trial.
Louisiana Code of Evidence article 611D provides that a witness who has been cross-examined is subject to redirect examination as to matters covered on cross-examination and, in the discretion of the court, as to other matters in the case.
Having found that the trial court did not abuse its discretion on these evidentiary rulings, we now review the trial court judgment under the appropriate manifest error standard of review.
Where the fact finder'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. This rule applies equally to the evaluation of expert testimony, including the evaluation and resolution of conflicts in expert testimony.
In the instant case, we have two competing expert opinions. In reviewing the two expert opinions, the trial court employed its own judgment to determine which expert opinion should be believed over the other. The trial court, after hearing and seeing both experts testify, found one expert more reliable than the other. The trial court, recognizing that experts are used to help the trier of fact in making their determinations, and weighing the testimony of the two experts, stated that it had "no question at all that Mr. Larose's testimony and figures were much more accurate." Mr. Larose testified that the subject property is a long relatively narrow tract, typical of family tracts, which should be compared to other such tracts he called "carrots," rather "apples," tracts of land whose length and width do not vary as greatly. He testified that the uses for "carrot" properties and "apple" properties varied, and he discussed the differences. Mr. Larose's expert opinion was that the property's value on March 29, 2006, the date of the cash sale between the sellers and the Foleys' designee, was $244,000.00.
Upon our own thorough review of the record, we find no manifest error in the trial court's finding that Mr. Richard did not suffer any damages from the loss of the sale. The trial court's conclusion that the value of the subject property was $244,000.00 was reasonably supported by the record and is not clearly wrong. Accordingly, we cannot agree with Mr. Richard's argument that he suffered damages in an amount between $578,444.42 and $1,194,944.50 for the loss of the sale. Nor do we find the trial court's factual finding that Mr. Richard did not suffer general damages was manifestly erroneous. Additionally, the trial court specifically found no bad faith on the part of the realtors. While Mr. Richard continues to argue bad faith, the record fails to support such a finding.
Mr. Richard next argues that the trial court erred in failing to cast judgment against the sellers. He asserts that the breach of the purchase agreement by the sellers was caused by the negligence of their realtors. According to Mr. Richard, the trial court should have assessed the damages directly against the sellers and then have the real estate defendants indemnify the sellers for the damages assessed against them.
The trial court concluded that defendant realtors "breached their duty that was owed to all parties involved," including Mr. Richard, the sellers, and the intervenors. Finding that the realtors were negligent and the only parties responsible for the damages sustained herein, the trial court assessed the damages incurred directly against the real estate defendants. Having found that Mr. Richard's action against the real estate defendants for negligence arose ex delicto, rather than from contract, and having found that the realtors' negligence supports the imposition of liability against the real estate defendants, we find no error in the trial court's judgment assessing damages against the only parties determined to be at fault, the real estate defendants.
Mr. Richard also asserts that the trial court erred in failing to award him Mr. Babin's expert witness fee, which was $9,925.00. The trial court is vested with great discretion to assess costs against any party as it may deem equitable, even against the party who prevails on the merits; however, the general rule is that costs are to be paid by the party cast in judgment.
In its March 1, 2012 judgment, the trial court did not award to Mr. Richard Mr. Babin's expert witness fees. Although Mr. Richard prevailed in this matter, it was determined that he suffered no damages regarding the loss of the sale of the immovable property other than his attorney fees. Further, the trial court concluded that Mr. Richard's expert witness was less credible than the sellers' expert witness. Therefore, upon our review of the record, we find no abuse of the trial court's great discretion when it determined that each party would pay their own expert witness fees.
Mr. Richard filed an answer to the appeal of the real estate defendants and the sellers answered the appeal of Mr. Richard and of the real estate defendants.
For all of the above and foregoing reasons, the March 1, 2012 trial court judgment is amended, to award $3,000.00 in attorney fees for work performed in defense of this appeal in favor of the sellers, Joyce Breaux McElroy and Carolyn Breaux, and against the real estate defendants, Houma's Town & Country Real Estate, Inc., Bill G. Boyd, Faith Boudreaux, and Continental Casualty Company, in solido. In all other respects, the judgment is affirmed. Costs of this appeal are assessed equally between Henry J. Richard and the real estate defendants.
