STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
18-158
GBB PROPERTIES TWO, LLC, ET AL.
VERSUS
STIRLING PROPERTIES, LLC, ET AL.
**********
APPEAL FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF LAFAYETTE, NO. C-20162400 HONORABLE EDWARD D. RUBIN, DISTRICT JUDGE
JOHN D. SAUNDERS JUDGE
Court composed of Sylvia R. Cooks, John D. Saunders, and Elizabeth A. Pickett, Judges.
REVERSED AND REMANDED. Brent B. Barriere Skylar Rosenbloom Rebecca Sha Fishman Haygood, L.L.P. 201 St. Charles Ave., Suite 4600 New Orleans, LA 70170 (504) 586-5252 COUNSEL FOR DEFENDANT/APPELLEE: Stirling Properties, LLC Ambassador Town Center JV, LLC CBL & Associates Management, Inc. Four Magnolias, LLC Ambassador Infrastructure, LLC
Rickey W. Miniex Clyde R. Simien Katrena A. Porter Simien & Miniex, APLC 104 Rue Iberville Lafayette, LA 70508 (337) 269-0222 COUNSEL FOR DEFENDANT/APPELLEE: Stirling Properties, LLC Ambassador Town Center JV, LLC CBL & Associates Management, Inc. Four Magnolias, LLC Ambassador Infrastructure, LLC
Patrick S. McGoey Andrea V. Timpa Ellie T. Schilling Schonekas, Evans, McGoey & McEachin, LLC 909 Poydras Street, Suite 1600 New Orleans, LA 70112 (504) 680-6050 COUNSEL FOR PLAINTIFF/APPELLANT: GBB Properties Two, LLC DBR Properties, LLC SAUNDERS, Judge.
This is a case involving the development of real property as a major mixed-
use project. Appellants asserted various claims arising under a purchase agreement
and a payment-in-lieu-of-taxes agreement relating to the development of
infrastructure improvements to the “master tract” of the project.
The trial court granted a partial summary judgment dismissing Appellants’
claims relating to the purchase agreement. Appellants appeal the dismissal of those
claims.
FACTUAL AND PROCEDURAL HISTORY:
This lawsuit arises out of a commercial development known as Ambassador
Town Center. The development spans 125 plus acres and includes a Costco, Dicks
Sporting Goods, Lazyboy and other retailers.
In 2013, GBB Properties Two, LLC and DBR Properties, LLC (Collectively
“Appellants”) agreed to sell a portion of the 125 acre “master tract” to Four
Magnolias, LLC. Prior to the Act of Sale, a Purchase Agreement was entered into
by the parties which obligated Four Magnolias, LLC to buy at least 41 acres of the
125 acre “master tract.” It also obligated Four Magnolias to pay for the construction
of infrastructure improvements outside of the property it was to acquire, i.e., the
remaining property in the “master tract.” Section 2.B of the Purchase Agreement
provided that if Four Magnolias, LLC did not incur a certain amount of costs to make
the infrastructure improvements, it would owe Appellants a rebate. As such, under
Section 2.B, Four Magnolias, LLC is required to account for the possibility that it
would owe a rebate to Appellants once construction was completed. Thereafter,
Four Magnolias, LLC assigned its interest in the land to Ambassador Town Center
JV, LLC. An Act of Sale was entered into between Appellants and Ambassador Town
Center JV. The Act of Sale did not address these off-site infrastructure costs or the
rebate.
Ambassador Infrastructure, LLC completed all of the public infrastructure on
the land acquired in the Act of Sale. No such public infrastructure was done to the
remaining land in the “master tract.”
Appellants filed suit against Ambassador Infrastructure, LLC, Four
Magnolias, LLC, and Ambassador Town Center JV (Collectively “Appellees”).
Appellants asserted in its suit, inter alia, claims involving obligations stemming
from the Purchase Agreement that were not included in the Act of Sale. Appellees
filed a Motion for Partial Summary Judgment to dismiss those claims.
After a hearing, the trial court granted Appellees’ Motion for Partial Summary
Judgment. It is from this judgment that Appellants present two assignments of error.
ASSIGNMENTS OF ERROR:
1. The trial court erred in granting Defendants’ Motion for Partial Summary Judgment dismissing not only Plaintiffs’ breach of the Purchase Agreement claim but also their unjust enrichment claim.
2. The trial court erred in failing to defer ruling on the Defendants’ Motion for Partial Summary Judgment until adequate discovery was completed.
ASSIGNMENT OF ERROR NUMBER ONE:
In their first issue assignment of error, Appellants contends that the trial court
erred in granting Defendants’ motion for partial summary judgment dismissing their
breach of the purchase agreement and unjust enrichment claims. We find merit to
this assignment of error.
A summary judgment is reviewed using the de novo standard of review by
focusing on the identical criteria that govern the trial court’s consideration of
whether summary judgment is appropriate. Samaha v. Rau, 07-1726 (La. 2/26/08), 2 977 So.2d 880. As such, we are tasked to make a determination whether “the motion,
memorandum, and supporting documents show that there is no genuine issue as to
material fact and that the mover is entitled to judgment as a matter of law.” La.Code
Civ.P. art. 966(A)(3).
In adjudicating a motion for summary judgment, a court cannot “consider the
merits, make credibility determinations, evaluate testimony[,] or weigh evidence.”
Prop. Ins. Ass’n of La. v. Theriot, 09-1152, p. 3 (La. 3/16/10), 31 So.3d 1012, 1014
(quoting Suire v. Lafayette City–Parish Consol. Gov’t, 04-1459, (La. 4/12/05), 907
So.2d 37). Moreover, although “summary judgments are now favored, factual
inferences reasonably drawn from the evidence must be construed in favor of the
party opposing the motion, and all doubt must be resolved in the opponent’s favor.”
Willis v. Medders, 00-2507, p. 2 (La. 12/8/00), 775 So.2d 1049, 1050.
“If the words of a contract are clear, explicit, and lead to no absurd results, it
must be interpreted by reference to the ‘four corners’ of the document and no further
interpretation can occur in search of the parties’ intent.” Hebert v. Ins. Center, Inc.,
97-298, p. 4 (La.App. 3 Cir. 1/7/98), 706 So.2d 1007, 1011, writ denied, 98-353
(La.3/27/98), 716 So.2d 888; La.Civ.Code art. 2046. Louisiana Civil Code Article
1848 states, “[t]estimonial or other evidence may not be admitted to negate or vary
the contents of an authentic act or an act under private signature.” Comment (a) of
La.Civ.Code art. 1848 iterates that Article 1848 “incorporates exceptions recognized
by the Louisiana jurisprudence.”
One such exception is that of the prior or contemporaneous agreement
between the parties.
Evidence is also admissible of a valid prior or contemporaneous agreement of a collateral nature between the parties about which the final written contract is silent. This rule of admissibility is important in real estate transactions. For example, an act of sale, the formal act of transfer of the property, may not contain each and every stipulation 3 between the parties concerning the real estate, either intentionally or through oversight. However, a prior or contemporaneous collateral agreement regarding the real estate is nonetheless effective provided that the agreement is not at variance with the terms of the act of sale.
1 Peter S. Title, LOUISIANA REAL ESTATE TRANSACTIONS, § 7:46 (2d ed. 2016).
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STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
18-158
GBB PROPERTIES TWO, LLC, ET AL.
VERSUS
STIRLING PROPERTIES, LLC, ET AL.
**********
APPEAL FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF LAFAYETTE, NO. C-20162400 HONORABLE EDWARD D. RUBIN, DISTRICT JUDGE
JOHN D. SAUNDERS JUDGE
Court composed of Sylvia R. Cooks, John D. Saunders, and Elizabeth A. Pickett, Judges.
REVERSED AND REMANDED. Brent B. Barriere Skylar Rosenbloom Rebecca Sha Fishman Haygood, L.L.P. 201 St. Charles Ave., Suite 4600 New Orleans, LA 70170 (504) 586-5252 COUNSEL FOR DEFENDANT/APPELLEE: Stirling Properties, LLC Ambassador Town Center JV, LLC CBL & Associates Management, Inc. Four Magnolias, LLC Ambassador Infrastructure, LLC
Rickey W. Miniex Clyde R. Simien Katrena A. Porter Simien & Miniex, APLC 104 Rue Iberville Lafayette, LA 70508 (337) 269-0222 COUNSEL FOR DEFENDANT/APPELLEE: Stirling Properties, LLC Ambassador Town Center JV, LLC CBL & Associates Management, Inc. Four Magnolias, LLC Ambassador Infrastructure, LLC
Patrick S. McGoey Andrea V. Timpa Ellie T. Schilling Schonekas, Evans, McGoey & McEachin, LLC 909 Poydras Street, Suite 1600 New Orleans, LA 70112 (504) 680-6050 COUNSEL FOR PLAINTIFF/APPELLANT: GBB Properties Two, LLC DBR Properties, LLC SAUNDERS, Judge.
This is a case involving the development of real property as a major mixed-
use project. Appellants asserted various claims arising under a purchase agreement
and a payment-in-lieu-of-taxes agreement relating to the development of
infrastructure improvements to the “master tract” of the project.
The trial court granted a partial summary judgment dismissing Appellants’
claims relating to the purchase agreement. Appellants appeal the dismissal of those
claims.
FACTUAL AND PROCEDURAL HISTORY:
This lawsuit arises out of a commercial development known as Ambassador
Town Center. The development spans 125 plus acres and includes a Costco, Dicks
Sporting Goods, Lazyboy and other retailers.
In 2013, GBB Properties Two, LLC and DBR Properties, LLC (Collectively
“Appellants”) agreed to sell a portion of the 125 acre “master tract” to Four
Magnolias, LLC. Prior to the Act of Sale, a Purchase Agreement was entered into
by the parties which obligated Four Magnolias, LLC to buy at least 41 acres of the
125 acre “master tract.” It also obligated Four Magnolias to pay for the construction
of infrastructure improvements outside of the property it was to acquire, i.e., the
remaining property in the “master tract.” Section 2.B of the Purchase Agreement
provided that if Four Magnolias, LLC did not incur a certain amount of costs to make
the infrastructure improvements, it would owe Appellants a rebate. As such, under
Section 2.B, Four Magnolias, LLC is required to account for the possibility that it
would owe a rebate to Appellants once construction was completed. Thereafter,
Four Magnolias, LLC assigned its interest in the land to Ambassador Town Center
JV, LLC. An Act of Sale was entered into between Appellants and Ambassador Town
Center JV. The Act of Sale did not address these off-site infrastructure costs or the
rebate.
Ambassador Infrastructure, LLC completed all of the public infrastructure on
the land acquired in the Act of Sale. No such public infrastructure was done to the
remaining land in the “master tract.”
Appellants filed suit against Ambassador Infrastructure, LLC, Four
Magnolias, LLC, and Ambassador Town Center JV (Collectively “Appellees”).
Appellants asserted in its suit, inter alia, claims involving obligations stemming
from the Purchase Agreement that were not included in the Act of Sale. Appellees
filed a Motion for Partial Summary Judgment to dismiss those claims.
After a hearing, the trial court granted Appellees’ Motion for Partial Summary
Judgment. It is from this judgment that Appellants present two assignments of error.
ASSIGNMENTS OF ERROR:
1. The trial court erred in granting Defendants’ Motion for Partial Summary Judgment dismissing not only Plaintiffs’ breach of the Purchase Agreement claim but also their unjust enrichment claim.
2. The trial court erred in failing to defer ruling on the Defendants’ Motion for Partial Summary Judgment until adequate discovery was completed.
ASSIGNMENT OF ERROR NUMBER ONE:
In their first issue assignment of error, Appellants contends that the trial court
erred in granting Defendants’ motion for partial summary judgment dismissing their
breach of the purchase agreement and unjust enrichment claims. We find merit to
this assignment of error.
A summary judgment is reviewed using the de novo standard of review by
focusing on the identical criteria that govern the trial court’s consideration of
whether summary judgment is appropriate. Samaha v. Rau, 07-1726 (La. 2/26/08), 2 977 So.2d 880. As such, we are tasked to make a determination whether “the motion,
memorandum, and supporting documents show that there is no genuine issue as to
material fact and that the mover is entitled to judgment as a matter of law.” La.Code
Civ.P. art. 966(A)(3).
In adjudicating a motion for summary judgment, a court cannot “consider the
merits, make credibility determinations, evaluate testimony[,] or weigh evidence.”
Prop. Ins. Ass’n of La. v. Theriot, 09-1152, p. 3 (La. 3/16/10), 31 So.3d 1012, 1014
(quoting Suire v. Lafayette City–Parish Consol. Gov’t, 04-1459, (La. 4/12/05), 907
So.2d 37). Moreover, although “summary judgments are now favored, factual
inferences reasonably drawn from the evidence must be construed in favor of the
party opposing the motion, and all doubt must be resolved in the opponent’s favor.”
Willis v. Medders, 00-2507, p. 2 (La. 12/8/00), 775 So.2d 1049, 1050.
“If the words of a contract are clear, explicit, and lead to no absurd results, it
must be interpreted by reference to the ‘four corners’ of the document and no further
interpretation can occur in search of the parties’ intent.” Hebert v. Ins. Center, Inc.,
97-298, p. 4 (La.App. 3 Cir. 1/7/98), 706 So.2d 1007, 1011, writ denied, 98-353
(La.3/27/98), 716 So.2d 888; La.Civ.Code art. 2046. Louisiana Civil Code Article
1848 states, “[t]estimonial or other evidence may not be admitted to negate or vary
the contents of an authentic act or an act under private signature.” Comment (a) of
La.Civ.Code art. 1848 iterates that Article 1848 “incorporates exceptions recognized
by the Louisiana jurisprudence.”
One such exception is that of the prior or contemporaneous agreement
between the parties.
Evidence is also admissible of a valid prior or contemporaneous agreement of a collateral nature between the parties about which the final written contract is silent. This rule of admissibility is important in real estate transactions. For example, an act of sale, the formal act of transfer of the property, may not contain each and every stipulation 3 between the parties concerning the real estate, either intentionally or through oversight. However, a prior or contemporaneous collateral agreement regarding the real estate is nonetheless effective provided that the agreement is not at variance with the terms of the act of sale.
1 Peter S. Title, LOUISIANA REAL ESTATE TRANSACTIONS, § 7:46 (2d ed. 2016).
In this case, Appellees filed the motion for summary judgment. On appeal,
they argue that because the Act of Sale does not include certain obligations set forth
in the Purchase Agreement, those obligations are not enforcable between the parties.
Appellees cite La.Civ. Code art. 1835 which states, “[a]n authentic act constitutes
full proof of the agreement it contains, as against the parties, their heirs, and
successors by universal or particular title.” As such, according to Appellees, the trial
court’s dismissal of Appellants’ claims relative to the Purchase Agreement was
proper given that the Act of Sale was an authentic act. We find no merit to this
argument.
Our reading of the applicable law, as accurately stated in 1 Peter S. Title,
LOUISIANA REAL ESTATE TRANSACTIONS, § 7:46 (2d ed. 2016), is that provisions of
a Purchase Agreement, as a collateral or contemporaneous agreement, that do not
vary the terms of the Act of Sale can be presented as evidence of obligations between
the parties. Thus, in this case, it was an error of law for the trial court to dismiss
Appellants’ claims relative to the Purchase Agreement under the guise of the Act of
Sale being the “final expression of the parties’ intent.” The trial court must
adjudicate those claims alleged to arise from the collateral or contemporaneous
Purchase Agreement as long as those claims do not vary the terms of the Act of Sale.
Accordingly, we reverse the trial court’s granting of Appellees’ Motion for Partial
Summary Judgment.
4 ASSIGNMENT OF ERROR NUMBER TWO:
In their second assignment of error, Appellants assert that the trial court erred
in failing to defer ruling on the Defendants’ Motion for Partial Summary Judgment
until adequate discovery was completed. Our finding in Assignment of Error
Number One pretermits this assignment of error.
CONCLUSION:
GBB Properties Two, LLC and DBR Properties, LLC assert two assignments
of error. We find merit to the first that the trial court erred in granting Ambassador
Infrastructure, LLC, Four Magnolias, LLC, and Ambassador Town Center JV’s
Motion for Partial Summary Judgment. This finding pretermits the second assigned
error. Costs of these proceedings are assessed to Ambassador Infrastructure, LLC,
Four Magnolias, LLC, and Ambassador Town Center JV.
REVERSED AND REMANDED.