6126, L.L.C. v. Strauss

131 So. 3d 92, 2013 La.App. 4 Cir. 0853, 2013 WL 6327414, 2013 La. App. LEXIS 2478
CourtLouisiana Court of Appeal
DecidedDecember 4, 2013
DocketNo. 2013-CA-0853
StatusPublished
Cited by10 cases

This text of 131 So. 3d 92 (6126, L.L.C. v. Strauss) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
6126, L.L.C. v. Strauss, 131 So. 3d 92, 2013 La.App. 4 Cir. 0853, 2013 WL 6327414, 2013 La. App. LEXIS 2478 (La. Ct. App. 2013).

Opinion

PAUL A. BONIN, Judge.

|TThe St. Henry Condominium is a three-unit condominium project on St. Charles Avenue near Audubon Park in Uptown New Orleans. Its governing declaration confers a so-called right of redemption to the condo unit owners whenever one condo unit owner sells his unit without first offering the remaining condo unit owners the right of first refusal on the purchase. Learning that the record owner of Unit B had executed a counter letter in favor of her son with respect to a 48.2% interest in her unit as well as an act of donation of the unit to her daughter-in-law, the record owners of Units A and C instituted these proceedings.

Ruling on competing motions for summary judgment, the District Court determined that the record owners of Units A and C were entitled to exercise the right of redemption by paying $500,000 for the 48.2% interest on account of the counter letter, and that the donation was valid and effectively transferred the remaining 51.8% ownership interest in Unit B to the daughter-in-law. The District 12Court further reserved unto the parties the right to partition Unit B at a later time, and deferred ruling on the claims set out in the defendants’ reconventional demand.

Upon our de novo review of the rulings on the motions for summary judgment, each of which was granted in part and denied in part, and upon our de novo examination of the Condominium Declaration and the Counter Letter, we find as a matter of law that the Counter Letter between the record owner of Unit B and her son is not a sale, and that the record owners of Units A and C are not entitled to exercise the so-called right of redemption provided for in the Condominium Declaration. Accordingly, we reverse the partial summary judgment which determined otherwise.

We note at this point that the owners of Units A and B did not appeal the District Court’s factual finding that the donation to the daughter-in-law was valid, or its consequent legal conclusion that the Act of Donation did not entitle the other condo unit owners to exercise the declaration’s right [96]*96of redemption. We, accordingly, decline to review these portions of the District Court’s judgment.

Consequently, as a result of our reversal of that portion of the judgment which was favorable to the owners of Units A and C and of the finality of that portion of the judgment which was not appealed by them, we dismiss with prejudice their principal demand. Also, we need not remand for further proceedings on the reconventional demand because the parties at oral argument agreed that a dismissal with prejudice of the principal demand would moot the reconventional demand.

|3We explain our decision in greater detail in the following parts.

I

Here we set forth the identities of the parties, the underlying facts, and this case’s procedural history.

A

The plaintiffs in the principal demand are 6126, L.L.C., and James Farwell and G.F. LeBreton, who were respectively the record-owners of Unit A and Unit C at the time the lawsuit was filed. None of them, however, were record-owners of either unit at the time Unit B was acquired from Thomas Black by Jon Besthoff Strauss, one of the defendants. Jon is the mother of Jeffry Strauss, who is married to Susan Carman Strauss; Jeffry and Susan are the remaining defendants in the principal demand.1

B

The St. Henry Condominium was established on May 16, 1978, by a document entitled Condominium Declaration Creating and Establishing Condominium Property Regime. The Condominium Declaration creates a condominium association, describes the three individual units, the common areas, and the land on which the condominium sits. The Condominium Declaration also sets out the method of the condominium association’s governance, and provides the rules regulating the condominium’s maintenance and administration.

|4The Condominium Declaration also particularly provides that with “the exception of transfers of ownership of any Unit by one spouse to another, should the owner of any Unit be desirous of leasing or selling such Unit, each other Unit Owner is hereby given and granted the right of first refusal to lease or purchase such Unit, as the case may be, on the terms and conditions herein stated, and no owner of a Unit shall lease or sell the same to any party without first giving the [Condominium] Association notice in writing of such lease or sale as herein provided, thereby giving each of the individual Unit Owner[s] the opportunity to determine whether any of them will exercise their right of first refusal.”

The notice required by the Condominium Declaration’s right of first refusal obligates a Unit Owner seeking to sell or lease his unit to provide to the Association not only “an executed copy of the bona fide offer” to lease or purchase, but also “the name, address, business, occupation or employment, if any, of the offeror.” The bona fide offer to purchase given by Jon to Mr. Black is not contained in the record, but the parties agree that only Jon’s name, and not Jeffry’s, appears.

The Condominium Declaration further provides that in the event that a Unit [97]*97Owner sells or leases their unit without first giving notice to the Association, and thus negating the other owners’ right of first refusal, then any of the other Unit Owners “shall have the right to redeem said Unit from such lease or sale transaction by reimbursing the lessee for the amount of any rent paid in advance ... or by refunding unto the purchaser of such Unit the purchase price paid therefore, | sin which latter event, the purchaser of such Unit shall convey the title to such unit to the electing Unit Owner.” In other words, the Condominium Declaration provides that the right of redemption cannot be exercised absent a breach of the right of first refusal.

On October 31, 2002, Jon signed the Act of Cash Sale whereby she purported to purchase an undivided one-hundred percent interest in Unit B from Mr. Black, the unit’s prior owner. The Act of Cash Sale declares and acknowledges that it is made subject to the Condominium Declaration. Attached to the Act of Cash Sale from Mr. Black to Jon are the written waivers of the right of first refusal and option to purchase Unit B signed by the then-owners of Units A and C, which written waivers noted that the purchase price to be paid was $1,087,500. That Jon paid Mr. Black that amount is undisputed.

Prior to executing the Act of Cash Sale, however, Jon borrowed from Jeffry $1,000,000, one half of which was repaid in December of 2002.2 On the same day as the Act of Cash Sale, Jon executed the Counter Letter in favor of Jeffry before a notary and two witnesses. Jeffry, a Colorado resident, signed the Counter Letter before a Colorado notary on November 20, 2002.3 The Counter Letter describes the parties to the document, provides a legal description of Unit B and the land on which the St. Henry Condominium sits, notes that Jon acquired an undivided one-lhundredfi percent interest to Unit B by Act of Cash Sale on October 31, 2002, and states:

That although said Act recites JON BESTHOFF STRAUSS paid a cash consideration of ONE MILLION THIRTY-SEVEN THOUSAND FIVE HUNDRED AND NO/100 ($1,037,500.00) DOLLARS, in truth and in fact, her son, JEFFRY B. STRAUSS paid part of that consideration with his separate funds, under his separate administration and control.

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131 So. 3d 92, 2013 La.App. 4 Cir. 0853, 2013 WL 6327414, 2013 La. App. LEXIS 2478, Counsel Stack Legal Research, https://law.counselstack.com/opinion/6126-llc-v-strauss-lactapp-2013.