Borne v. King

799 So. 2d 853, 2001 La. App. LEXIS 2667, 2001 WL 1402979
CourtLouisiana Court of Appeal
DecidedNovember 7, 2001
DocketNo. 2001-CA-0087
StatusPublished

This text of 799 So. 2d 853 (Borne v. King) 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
Borne v. King, 799 So. 2d 853, 2001 La. App. LEXIS 2667, 2001 WL 1402979 (La. Ct. App. 2001).

Opinions

|,MIRIAM G. WALTZER, Judge.

STATEMENT OF THE CASE

Allen H. Borne, Jr. filed suit in 1997 for damages allegedly sustained as a result of the professional malpractice of zoning consultant Raymond M. King. Borne alleged that he entered into a contract with [855]*855King to assist in the rezoning of Borne’s property at 4401 South Broad Street for use as professional offices with general business use on the first floor of the building. Borne alleged that King misrepresented the progress of the zoning process, was negligent in the conduct and handling of the matter and acted beyond his authority by failing to report to Borne the City Council’s offer of an alternative commercial zoning for the property. King answered denying liability and filed a reconventional demand for the balance due under the contract. Borne answered with a general denial.

The matter was heard by the trial judge, who rendered judgment on 26 September 2000 in favor of King on the main demand and in the amount of $1,428.75 on King’s reconventional demand. Borne appeals from that judgment. We affirm.

I «STATEMENT OF FACTS

King does not hold a license, and there is no evidence that there is a licensing agency or professional organization for “zoning consultants.” Borne is a sophisticated attorney who is also engaged in the real estate business.

On 8 February 1996, Borne and King entered into a contract that provided in pertinent part:

The Client [Borne] is contracting with Raymond M. King, Consulting to provide assistance in acquiring rezoning of the above described property.
The zoning change from RD-2 to Bl-A (Commercial) to conform with the practice of zoning lots intended for use as a restaurant in a residential district. Raymond M. King Consulting and Services will use its best efforts to assist Mr. Borne in achieving this zoning change. Mr. Borne understands that the services herein agreed to do not necessarily guarantee the acquisition of the zoning change, and that payment for services is based on time spent pursuing the required legislation, and not on the outcome of such efforts.
[King] will invoice Mr. Borne at a rate of $45.00 per hour for all time spent on this project, and for reasonable expenses that may be associated with work on the client’s behalf. Invoices will be provided every 30 days, due and payable within 5 days following presentation.

The trial court in its reasons for judgment found that the contract specifically states King was to assist Borne in having his property rezoned from RD-2 to Bl-A, no other designation having been considered in the contract. Furthermore, the trial court found the contract did not guarantee the desired zoning would be obtained nor did it require King to seek alternative commercial zoning. The court also found that Borne was aware of the lack of control an outside party may have in governmental zoning decisions. He found that King used his best efforts to fulfill [ 3his contractual duty and was not negligent in his performance. The court found that King is entitled to payment of $1,428.75 as the balance due from Borne under the contract.

The parties stipulated to the following exhibits:

1. City Planning Commission Preliminary Staff Report of 5 September 1996 recommending modified approval for a map change to RO-1 General Office, subject to seven restrictions;
2. City Planning Commission Staff Report of 11 September 1996, which outlined the course of the public hearing that resulted in the CPC’s denial of Borne’s application;
3. City council Motion No. M-96-665 of 3 October 1996 upholding the CPC’s denial of map change from RD-2 Two Family Residential to B-1A Neighbor[856]*856hood Business District, which passed on a 7-0 vote.
4. Facsimile message from King to Borne dated 4 October 1996 which said in pertinent part, “We were denied. The councilman motioned to uphold the planning commissions [sic] recommendations. I think our next step is to file an appeal with Civil District Court ... Especially since you know the judges. However, Oliver can submit a motion for the planning commission to rehear this matter. Let me know your decision, (ps [sic] The attached letter is what I’ve delivered to the councilman this morning.)”
5. Letter from King to Councilman Thomas dated 3 October 1996 which said: “I was extremely disappointed with the results of docket 9%7 today. From total approval to complete denial of the petition OVERNIGHT. I’m beginning to believe that there is no way a person can get into business in this city. Mr. Borne purchased this property with good intentions and in good faith with the neighborhood association. He has been blocked and lied to every bit of the way. Let me explain: 1) Mr. Borne purchased the property with an existing lease. Extended to 1999. 2) Mr. Borne had to commence eviction proceedings in civil district court in order to gain access to the property before commencing any action as regards zoning matters. 3) Legal-non-conforming use was attempted but everyone suggested a |4map change since Mr. Borne wanted to use both the upper and lower floors in his project. B1A [sic] was recommended. 4) Richard Allen of CPC staff was the person that changed the zoning to RO-1 in his recommendation to the planning commission. This and objections concerning legal-non-conforming use status by the residents was the reason for denial by that body. 5) Now we’re into October with a flat denial and no reasonable solution in site [sic] for Mr. Borne and his property. I think you will agree that the system is negligent. When someone can purchase a property that seems to be falling to neglect and attempts to create some neighborhood revitalization, and meets with these kinds of delays and opposition, something is wrong. I think you originally saw the need of revitalizing this corner but you allowed yourself to be swayed by a few of your constituents. Who pray tell will be the caretakers of this city if we allow people this kind of decision power? Are we to say to everyone “BEWARE — DO NOT PURCHASE PROPERTY IN THIS CITY! Think about the loss to the city of no-one will invest in it. In closing let me say that I’m more than disappointed, I’m sick over this thing. In addition, I feel as though I’ve lost a friend.”
6.Letter from Councilman Thomas to King that said: “I am also extremely disappointed with what happened concerning zoning docket 96-97. But I am most disappointed with the way you handled it and your total lack of regard for me and my neighbors. If you had taken the time and made the effort to meet with the neighborhood groups and build trust before putting in a final application with the City Planning Commission, then denial of this zoning petition would not have been necessary. Development of 4401 Broad in a manner suitable to the neighborhood could have proceeded. Mr. King, if it makes you feel better to blame everyone else then you can, but let me assure you no one else feels guilty. Mr. King, if you can say that now you feel you’ve lost a friend then to you I was never a friend anyway but simply someone in a position with a little influence that you felt you could use [857]*857when it was helpful to you. My father used to say that you find out who your real friends are in times of disappointment. At least, in your case, I now know.

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Bluebook (online)
799 So. 2d 853, 2001 La. App. LEXIS 2667, 2001 WL 1402979, Counsel Stack Legal Research, https://law.counselstack.com/opinion/borne-v-king-lactapp-2001.