Abbott v. Ryan

964 So. 2d 1087, 2007 WL 2473258
CourtLouisiana Court of Appeal
DecidedAugust 1, 2007
Docket2006-CA-1643
StatusPublished
Cited by2 cases

This text of 964 So. 2d 1087 (Abbott v. Ryan) 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
Abbott v. Ryan, 964 So. 2d 1087, 2007 WL 2473258 (La. Ct. App. 2007).

Opinion

964 So.2d 1087 (2007)

William T. ABBOTT
v.
Joseph RYAN and Stephanie C. Ryan.

No. 2006-CA-1643.

Court of Appeal of Louisiana, Fourth Circuit.

August 1, 2007.

*1088 Patrick D. Breeden, New Orleans, LA, for Plaintiff/Appellant, William T. Abbott.

Michael L. Vincenzo, John A. Cangelosi, King, Leblanc & Bland, P.L.L.C., New Orleans, LA, for Defendants/Appellees, Joseph Ryan and Stephanie C. Ryan.

(Court composed of Judge JAMES F. McKAY, III, Judge DAVID S. GORBATY, Judge LEON A. CANNIZZARO, JR.).

LEON A. CANNIZZARO, JR., Judge.

This case involves a dispute regarding an agreement to purchase and sell residential property. The plaintiff, William T. Abbott, is appealing a summary judgment granted by the trial court in favor of the defendants, Joseph Ryan and Stephanie C. Ryan (the "Ryans").

STATEMENT OF FACTS AND PROCEDURAL HISTORY

On or about January 30, 2005, the Ryans made an offer to purchase the property located at 1312 Octavia Street in New Orleans for the sum of $450,000.00. In making the offer, they executed the standard form of agreement to purchase and sell that was customarily used by the New Orleans realtors' association (the "Agreement"). Mr. Abbott, who owned the Octavia Street property, accepted the Ryans' offer on January 30, 2005, by signing the Agreement. Pursuant to a dual agency agreement that the Ryans, Mr. Abbott, and Melanie Zaffuto and Joseph Zaffuto (the "Zaffutos") of Crest Realty & Associates, Inc. executed, the Zaffutos were the designated real estate agents for both the Ryans and Mr. Abbott in connection with the Agreement.

The Agreement contained the following language relating to the inspection of the property:

PURCHASER shall have an inspection period of ten (10) calendar days, commencing the first day after acceptance of this agreement wherein, PURCHASER may, at his expense, have any inspections made by experts or others of his choosing. Such inspections may include, but are not limited to, inspections of or for termites and other wood destroying insects . . . and analysis of synthetic stucco, appliances, structures, roof, heating, cooling, electrical, plumbing systems . . . and any items addressed in Seller's Property Disclosure Statement. . . . Upon completion of such inspections, PURCHASER must provide SELLER (or SELLER'S DESIGNATED AGENT) with a copy of all inspection reports which subsequently becomes [sic] the property of the seller.

The Agreement further provided that if the purchaser were not satisfied with the property's condition as described in the inspection reports, the purchaser had two options. The purchaser "(1) may elect, in writing, to terminate the Agreement to Purchase, or (2) must indicate in writing the deficiencies and desired remedies." The seller then had seventy-two hours to respond in writing regarding the seller's willingness to remedy the deficiencies. If the seller refused to remedy any or all of the deficiencies, the purchaser had twenty-four hours from the date the seller responded in writing or was required to respond, whichever was earlier, to "(1) accept SELLER'S response to PURCHASER'S written requests or (2) accept the property *1089 in its present condition, or (3) to elect to terminate the Agreement to Purchase."

Finally, the Agreement provided that if the seller refused to remedy any or all of the property's defects and the purchaser either failed to respond within the twenty-four hour deadline or elected in writing to terminate the agreement, "the Agreement shall be ipso facto Null and Void (except for return of deposit). . . ." Further, the agreement stated that in such an event:

ALL PARTIES AGREE TO SIGN A CANCELLATION WITHIN 24 HOURS ENTITLING THE PURCHASER(S) TO THE RETURN OF HIS DEPOSIT IN FULL, AND NEITHER PARTY SHALL THEREAFTER HAVE ANY FURTHER OBLIGATION TO THE OTHER.

Although the standard form of the Agreement provided that the inspection period would last for a period of ten calendar days, the Agreement signed by the Ryans had the word "calendar" deleted and the word "working" inserted in place of the word "calendar." The change was initialed by the Ryans, and on January 30, 2005, Mr. Abbott accepted the agreement with the change that was made.

According to an affidavit of Mr. Ryan, after the Agreement was executed by all parties, the Ryans had "certain inspections performed of the property including a general inspection performed by Gurtler Brothers and certain termite inspections."[1] Mr. Ryan also stated in his affidavit that all inspections of the property were completed prior to the end of the day on February 14, 2005. This was the time that the Ryans believed was the end of the inspection period under the Agreement.

Additionally, Mr. Ryan's affidavit said that all written inspection reports were provided or made available to the Zaffutos, acting as Mr. Abbott's real estate agent, prior to February 14, 2005. The affidavit stated that based on the results of the inspection report of Gurtler Brothers as it pertained to the roof of the residence on Octavia Street, Wayne Frizell was contacted to give the Ryans estimates for the cost of repairing the roof and for the cost of replacing the roof. The affidavit made it clear that Mr. Frizell "was not hired to conduct an inspection of the roof or any other part of the Octavia Property."

Mr. Ryan's affidavit further claimed that based on the Gurtler Brothers report and on the termite inspection that had been performed, Mr. Ryan on February 12, 2005, "proposed a reduced offer to Abbott, in writing through the Agent, to purchase the Octavia Property." The affidavit further provided that "[i]n connection with the reduced offer . . . I prepared a written list of deficiencies and proposed remedies, which I forwarded to the Agent with the reduced offer." The affidavit then stated that Mr. Abbott proposed a counteroffer through the real estate agent. The counteroffer contained certain reductions to the purchase price that was contained in the Agreement but did not offer to remedy all of the deficiencies noted by the Ryans. Finally, the affidavit stated that the Ryans elected to terminate the agreement by allowing Mr. Abbott's counteroffer to lapse.

In response to the assertions of Mr. Ryan that were set forth in his affidavit, Mr. Abbott executed an affidavit. In his affidavit, Mr. Abbott stated that both he and Ms. Zaffuto understood that the term "working days" as used in the inspection period of the agreement meant Mondays *1090 through Saturdays but not Sundays and Mardi Gras Day, which was on a Tuesday during the inspection period. Therefore, Mr. Abbott asserted that he received the Gurtler Brothers inspection report after the inspection period deadline, which he contended was on February 11, 2005. Mr. Abbott also said in his affidavit that he never received an inspection report from Mr. Frizell, which Mr. Abbott claimed was the basis for the Ryans' amended offer. Finally, Mr. Abbott stated that "if he had known of Frizell, he would have considered lowering the price of the property to pay for roof repairs not specifically addressed in the Gertler [sic] Brothers inspection report."

In the instant case Mr. Abbott filed suit for breach of contract against the Ryans demanding specific performance of the Agreement or damages from the loss that he allegedly incurred when he ultimately sold the Octavia Street property for less than the purchase price under the Agreement. The Ryans filed a reconventional demand against Mr.

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Cite This Page — Counsel Stack

Bluebook (online)
964 So. 2d 1087, 2007 WL 2473258, Counsel Stack Legal Research, https://law.counselstack.com/opinion/abbott-v-ryan-lactapp-2007.