Hancock v. Turner

969 So. 2d 830, 2007 La. App. LEXIS 2103, 2007 WL 4125098
CourtLouisiana Court of Appeal
DecidedNovember 21, 2007
DocketNos. 42,690-CA, 42,691-CA
StatusPublished

This text of 969 So. 2d 830 (Hancock v. Turner) 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
Hancock v. Turner, 969 So. 2d 830, 2007 La. App. LEXIS 2103, 2007 WL 4125098 (La. Ct. App. 2007).

Opinion

PEATROSS, J.

hln these consolidated cases, the trial court ordered specific performance of an agreement by John Turner (“John”) to sell two acres of land (“the property”) to Laura Kelly Hancock (“Laura”). John appeals. For the reasons stated herein, we affirm.

FACTS

Laura was a longtime friend of Fern Turner (“Fern”), who was married to John during the time the events pertinent to this matter occurred. Through this friendship with Fern, Laura met John and the three maintained a friendship for many years. During those years, John’s health deteriorated and, according to the testimony of Fern, she was interested in having Laura live near them for support and help in caring for John. At the time, John’s son, Don, was living in a mobile home on a 2-acre portion of a larger 20-acre tract of land owned by John. Laura testified that she expressed an interest in purchasing the 2-acre mobile home site if Don ever moved. A short time later, Don and his wife moved their mobile home to another site and Laura and John executed the agreement for John to convey and Laura [832]*832to purchase the 2-acre tract that is at issue in this appeal.

Laura contacted a notary, Barbara Bas-more, and requested that she draft a document to memorialize the agreement of the parties to buy and sell the property. Ms. Basmore testified that she did not have a legal description of the property, but she did her best to draft a document that would suffice as an agreement to sell the 2-acre tract. The resulting document, entitled “Affidavit,” was executed on April 30, 2003, and was signed by Laura, John and two witnesses and a notary. The Affidavit states that Laura “has agreed |2to pay $2,000.00 for two acers (sic) of land in an undivided tract of land owned by John M. Turner.” At the time of execution of the Affidavit, Laura gave John a check for $2,000. The check was made payable to John and Fern and was deposited into a joint checking account owned by John and Fern. Fern testified that the money was used for general living expenses for both her and John. At no time was the $2,000 refunded to Laura. The Affidavit further states that, at a “later date,” the land would be properly surveyed and a deed executed.

Significantly, within a couple of weeks of execution of the Affidavit, Laura moved a mobile home onto the property, connected it to the existing utilities and began living in the mobile home. Laura testified that John and Fern visited Laura at her home on more than one occasion and there was never any opposition to her living there. This was confirmed by the testimony of Fern.

In accordance with the Affidavit, Laura had the parcel surveyed by James W. Braswell and Associates in November 2003. John, however, refused to execute a deed to the property. Instead, John issued a “notice of eviction” to Laura in January 2004. Laura then filed suit for specific performance and the actions were consolidated. John argued that the description in the document was insufficient to support the sale and, alternatively, that the price was lesionary. Laura then filed an amended petition arguing alternatively that, in the event the sale was deemed invalid, she was entitled to recovery of the purchase price and expenses incurred based on her detrimental reliance on the terms of the Affidavit.

|RAs previously stated, the trial court held that the Affidavit was valid and ordered specific performance of the sale. The trial court found that, with all the evidence adduced, including testimony and the survey, there was no confusion as to the exact property that was intended to be sold to Laura. In doing so, the court found the testimony of Laura and Fern to be credible along with the testimony of the witnesses to the signing of the agreement. The trial court then rejected John’s alternative argument of lesion. In reaching this conclusion, the court found that an appraisal submitted by John to support his lesion argument was remote in time and that, in fact, the pertinent two acres were not included in the appraisal. This appeal ensued.

DISCUSSION

La. C.C. art. 2462 allows for specific performance of a contract to sell immov-ables when the agreement is in writing, signed by the parties and specifies the thing and price. This case turns on how specific the description of the property must be and whether parol evidence is admissible to make the determination. Review of the jurisprudence confirms that such determinations are very fact intensive and each case must be scrutinized and determined on its specific facts.

[833]*833In City Bank and Trust of Shreveport v. Scott, 575 So.2d 872 (La.App. 2d Cir.1991), this court explained:

When the law requires a contract to be in written form, the contract may not be proved by testimony ... unless the written instrument has been destroyed, lost, or stolen. CC Art. 1832. Revision Comments-1984 state that Art. 1832 is new, but does not change the law, the principles and substance of | ¿which are derived from former CC Arts. 2275, 2278(4), 2279 and 2280.
This court has noted that there are cases in which parol or extrinsic evidence may be admitted to aid and identify immovable property described in a written contract to sell. Parol evidence has not been allowed, however, to wholly identify the immovable. Parol has been allowed only where the courts have found that there was “sufficient body” in the initial written description so as to leave the title to immovable property “resting substantially on writing and not essentially on parol.” Jackson v. Harris, 18 La.App. 484, 136 So. 166, 169 (La.App. 2d Cir.1931).

The rule in Louisiana finds its origin in the case of Kernan v. Baham, 45 La. Ann. 799, 13 So. 155 (1893), and was restated in City Bank, supra:

To aid and establish identity of a defective or ambiguous description of an immovable property in a written contract, parol evidence is admissible only where the written, but defective, description distinguishes the property from other properties so as to allow the conclusion that the mutual or common intent of the parties to the writing was to deal with the particular property and not another property of the same kind or quantity.

Further, there should be sufficient substance in the written description in question so as to leave title to the immovable resting substantially on the contents of the writing and not on parol evidence. City Bank, supra.

In City Bank, the court held that the description of “vacant land, 21 acres, Gilliam, Louisiana,” was too general to support the admission of parol evidence to establish what land was the object of the agreement. The court in City Bank provided a thorough and instructive discussion of the line of cases examining the sufficiency of descriptions of immovable property contained in agreements to sell. In its reasons for holding that parol was not admissible in City Bank, the court identified factors that, if present, support the reliance on parol to aid in the determination of the immovable property Rat issue. Most significant to the present case is allowing the prospective purchaser to take possession of the property.1

In addition, in Wilson v. Head, 97-922 (La.App.

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Related

Sexton v. Waggoner
66 So. 2d 634 (Louisiana Court of Appeal, 1953)
Wilson v. Head
707 So. 2d 127 (Louisiana Court of Appeal, 1998)
City Bank and Trust v. Scott
575 So. 2d 872 (Louisiana Court of Appeal, 1991)
Tullis v. Aertker
352 So. 2d 415 (Louisiana Court of Appeal, 1977)
Keenan v. Baham
45 La. Ann. 799 (Supreme Court of Louisiana, 1893)
Jackson v. Harris
136 So. 166 (Louisiana Court of Appeal, 1931)

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Bluebook (online)
969 So. 2d 830, 2007 La. App. LEXIS 2103, 2007 WL 4125098, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hancock-v-turner-lactapp-2007.