Adcock v. Wooten

180 So. 3d 473, 2015 La. App. LEXIS 1884, 2015 WL 5718601
CourtLouisiana Court of Appeal
DecidedSeptember 30, 2015
DocketNo. 50,116-CA
StatusPublished
Cited by1 cases

This text of 180 So. 3d 473 (Adcock v. Wooten) 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
Adcock v. Wooten, 180 So. 3d 473, 2015 La. App. LEXIS 1884, 2015 WL 5718601 (La. Ct. App. 2015).

Opinion

PITMAN, J.

11 Plaintiff Amanda Adcock appeals the judgment of the trial court denying her motion for summary judgment in a suit brought against Defendants, Shane Wooten, Keller Williams Realty Parishwide Partners and Parishwide Partners, LLC, based on unfair trade practices, fraud and misrepresentation in a real estate transaction, and granting Defendants’ motion for summary judgment raising the- issue of peremption and dismissing Plaintiffs suit. For the following reasons, we reverse the judgment of the trial court and remand for further proceedings.

FACTS

Plaintiff owned a home in West Monroe, Louisiana, mortgaged to JP Morgan Chase (“Chase”). She lost her job and was unable to make the monthly mortgage payments to Chase, which instituted foreclosure proceedings against her on August 3, 2011. She filed for Chapter 13 bankruptcy on November 11, 2011, to halt foreclosure and listed the home as a part of the bankruptcy estate. At the time she filed for bankruptcy, Plaintiff owed Chase $195,842.29.

In January 2012, Shane Wooten, a real estate agent with the local Kgller Williams Realty agency, contacted Plaintiff about listing the home for sale with him and told her that it could be taken out of the bankruptcy estate.

In March 2012, Plaintiff wrote a letter to Chase to initiate a short sale process. Mr. Wooten was able to secure Chase’s cooperation to have the residence removed from the bankruptcy estate; and, on April 16, 2012, an order was issued by the bankruptcy court removing it from the estate. The | ¡¡bankruptcy court also ordered that, if the sale of the home exceeded the amount owed to Chase, Chase was to forward the [475]*475proceeds to the bankruptcy .¿trustee for distribution to Plaintiffs other creditors.

On June 22, 2012, Tracy Randall . Ginn, the. spouse , of Jerri Ginn, who was a Keller Williams Realty employee, offered to buy Plaintiffs house for $185,000 plus $5,000 in closing costs. Plaintiff accepted that offer on June 25, 2012, and Mr. Wooten submitted the contract to Chase for its approval, which was required before the sale could be completed. Chase was slow to approve the contract, and the foreclosure proceedings continued, with a sheriffs salé being scheduled for October 10, 2012.

On the day of the scheduled sheriffs sale, Harold Book, a member of Alans, LLC, contacted Plaintiff personally and offered her $202,250 for her house. Plaintiff notified Mr. Wooten that she had been offered over $202,000 for her house, but he emailed her the next day, October 11, 2012, and advised her to reject the offer because the contract with Mr. Ginn was already pending. In that email, Mr. Wooten stated, “[Ujnfortunátély, we can only accept 1 offer at a time, we will have tó reject until I know more on the primary offer.” On October 12, 20Í2, Chase faxed a letter to Mr. Wooten approving the proposed short sale to Mr. Ginn.

The sale from Plaintiff to Mr. Ginn took place on October 19, 2012. Plaintiff alleged that Mr. Wooten gave her a check for $2,000 from his account just prior to the closing, although this payment to her is not accounted for anywhere on the HUD closing statement and obviously was not disbursed by the title company. At the closing, the payoff of |a$167,593.76 for the first mortgage was made to Chase, and Mr. Wooten and Keller Williams Realty received a commission of $11,100 on the sale. That same day, at the same attor-. neyri office, Mr. Ginn sold the property to Mr. Book,, through Alans, LLC, for $202,000; and the proceeds from that sale, as reflected on the HUD-1 statement, were used to pay off Mr. Ginn’s lender and the closing costs, with the remainder paid to Mr. Ginn. .

On -October 18, 2013, Plaintiff filed suit against -Defendants alleging the above facts, and asserting a claim against them under La. R.S. 51:1402, et seq., the Louisiana Unfair Trade Practices Act (“LUT-PA”). She alleged that she had suffered an ascertainable loss of money as a result of the use or employment by another p'er-son of an unfair or deceptive method, act or practice/ She further claimed that, as a result of Defendants’ unethical conduct, she had suffered general and special damages from loss of profit as evidenced by the fact that'Defendants immediately sold the property (the purchase of which they had just ‘negotiated- for $185,000) for $202,000 to the same person who had previously made that purchase offer to h’er. She also sought an award for attorney fees and costs, ■ as well as treble damages in accordance with La. R.S. 51:1409.

Both Plaintiff arid Defendants filed motions for summary judgment. Plaintiffs motion asserted that there are no genuine issues of material fact and that she is entitled to judgment as to both liability and damages. In support of her motion, she offered .her own affidavit; the affidavit of Harold Book; a copy of the email wherein Mr. Wooten.advised her to reject Mr. Book’s offer; the settlement statements and deeds for the sale of the | ¿house from her to Mr. Ginn and then from Mr. Ginn to Alans, LLC; and the records of the Louisiana Secretary of State showing Mr. Wooten’s connection to Ouachita Capital, LLC, which financed Mr. Ginn’s purchase of her property.

Plaintiff argued that these documents establish that Defendants are guilty of fraud, misrepresentation, deception and unethical conduct and prove that there are [476]*476no genuine issues of material fact as to the amount of damages she is owed, asserting that, had she sold her house to Mr. Book for his offer of $202,000 (assuming the payoff to Chase was $167,593.76), she would have received a profit of $22,286.24. She also asserted the amount that would have been assessed as treble damages if they were so awarded.

Defendants filed a motion for summary judgment in opposition seeking judgment declaring that Plaintiff was not entitled to the damages sought for a variety of reasons, including that she would have been unable to prove the facts necessary for her to recover under the LUTPA. They also raised the issue of peremption of Plaintiffs claim and asserted that any conceivable right of action under the LUTPA for any of Defendants’ acts occurring before October 18, 2012, was extinguished and barred by peremption. Specifically, Defendants argued that Plaintiff had attached to her petition a copy of the email from Mr. Wooten, which, arguably, established her cause of action as arising on October 11, 2012. They asserted that her petition was not filed until October 18, 2013, and, therefore, claimed her cause of action had per-empted under the LUTPA.

| sThe trial court held a hearing on the cross-motions for summary judgment and found that the exception of peremption was properly raised and agreed with Defendants that Plaintiffs suit was perempt-ed, finding that the one-year period set forth in La. R.S. 51:1409(E) began to run on October 11, 2012, the date Mr. Wooten sent the email to Plaintiff telling her to reject Mr. Book’s offer, instead of on October 19, 2012, the date of the two sales of the property. Having found the matter perempted, the trial court pretermitted any “incrimination with regard to the competing motions for summary judgment” and sustained the exception, dismissing Plaintiffs claims at her cost.

Plaintiff appeals the denial of her motion for summary judgment and the grant of Defendants’ motion for summary judgment based on peremption and the subsequent dismissal of the ease at her cost.

DISCUSSION

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Bluebook (online)
180 So. 3d 473, 2015 La. App. LEXIS 1884, 2015 WL 5718601, Counsel Stack Legal Research, https://law.counselstack.com/opinion/adcock-v-wooten-lactapp-2015.