Heath v. Continental Casualty Co.

200 So. 3d 911, 2016 La. App. LEXIS 1548, 2016 WL 4204586
CourtLouisiana Court of Appeal
DecidedAugust 10, 2016
DocketNo. 50,860-CA
StatusPublished
Cited by2 cases

This text of 200 So. 3d 911 (Heath v. Continental Casualty Co.) 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
Heath v. Continental Casualty Co., 200 So. 3d 911, 2016 La. App. LEXIS 1548, 2016 WL 4204586 (La. Ct. App. 2016).

Opinion

CARAWAY, J.

This matter concerns a partial summary judgment. Appellants sought the [912]*912advice of a real estate agent concerning the sale of their property with a reservation of the mineral rights. A prior mineral servitude affected appellants’ property, which was expected to soon prescribe. The agent provided appellants with an inaccurate date that they could sell the property and validly reserve the mineral rights after the extinguishment of the prior servitude. Thereafter, the agent entered into an agreement with appellants to purchase the property, but later he could not produce the full purchase amount. Eventually, the property was sold to a company that was owned by a co-worker of the agent. Appellants filed suit against the agent and his insurer after they discovered that their mineral reservation was ineffective and they did not reserve the mineral rights. Subsequently, the insurer filed a motion for summary judgment concerning its policy exclusion and the trial court granted the motion. Finding that a genuine issue of material fact exists, we reverse and remand.

Facts

In 2008, Jim and Freída Heath (“Appellants”) 'contacted Derek Eason (“Eason”), a real estate agent, to assist them in the sale of 520 acres (the “Property”) that they owned in Webster Parish. At the time, Eason was employed with Recreational Land Investments, LLC d/b/a Mossy Oaks Properties of Louisiana (“Mossy Oaks”). Appellants explained to Eason that the Property was subject to a mineral servitude, and that due to a prior agreement, they could only sell the Property once this servitude extinguished and the mineral rights reverted to them. Subsequently, Eason advised Appellants that this could be done in January of 2011 and that he would be interested in purchasing the Property for himself.

In December of 2008, Appellants agreed to sell the Property to Eason for $600,000. Pursuant to this agreement, Eason signed a preliminary purchase agreement (“Purchase Agreement”). The Purchase Agreement stipulated that “No oil, gas or hydrocarbons will transfer with sale of surface rights.” Furthermore, Appellants granted Eason a lease over the Property until the stipulated closing date of January 5, 2011. In return, Eason was required to make two lease payments of. $20,000, and a deposit of $20,000, equaling a total price of $60,000. Moreover, the Purchase Agreement stipulated that this $60,000 would count toward the full purchase price.

In late 2010, as time neared the closing date, Eason claims that he realized he did not have the money to close on the Property. So, he claims that he contacted Woo-dus Humphrey (“Humphrey”) to inquire as to whether Humphrey would be interested in purchasing the Property. At the time, Humphrey was also employed with Mossy Oaks. Humphrey indicated that he was interested and on January 20, 2011, Appellants sold the Property to Rolling Hills L.L.C., which was partially owned by Humphrey. The Property was sold under the terms of the Purchase Agreement for $540,000 and included the reservation of the mineral rights. The closing attorney for this sale was Jeffrey Norris. Shortly thereafter, Rolling Hills sold the Property to another party.

In August of 2012, Appellants discovered that when they sold the Property to Rolling Hills, they did not own the mineral rights. An oil and gas attorney advised them that the mineral servitude did not extinguish on the Property until March 25, 2012. Therefore, the mineral rights did not revert to the surface owner until March 25, 2012.

On July 1, 2013, Appellants filed suit against multiple parties, including Eason, and his real estate errors and omissions insure, Continental Casualty Company [913]*913(“Continental”). Appellants argued that their loss of the mineral rights was due to the fault of Eason, specifically in providing an inaccurate date that the mineral rights would revert to the surface owner. Therefore, Appellants argued that they were entitled to damages for Eason’s breach of his fiduciary duty as agent/mandatory. Subsequently, Eason, Humphrey, and Norris each gave depositions.

On' May 10, 2014, Continental filed a motion for partial summary judgment. Continental argued that its Insurance Policy (the “Policy”) unambiguously does not provide coverage for claims arising out of real estate transactions where the insured, in this ease Eason, attempted to purchase the Property at issue. In support, Continental attached a portion of Eason’s deposition, the Purchase Agreement, the Policy, and a certificate of coverage showing that Eason was an insured.

In . opposition, Appellants argued that the Policy’s exclusionary provision is inapplicable because their claim against Eason is related to the sale to Rolling Hills, not to Eason’s initial attempted purchase of the Property. Appellants further averred that material facts were in dispute. Appellants submitted that Eason did not attempt to purchase the Property in his individual capacity and, instead, the evidence suggests that Eason was working as an undisclosed agent for Rolling Hills. Appellants averred that the evidence shows that Eason never paid any of the installment payments as required under the Purchase Agreement. In support, Appellants attached the affidavit of Jim Heath, the affidavit of the attorney who provided Appellants the accurate date when the mineral rights reverted to the surface owner, a portion of Humphrey’s deposition, and a portion of Norris’ deposition.

In response to Appellants’ opposition, Continental supplemented its motion with additional portions of Eason’s and Humphrey’s depositions. Similarly, Appellants supplemented their opposition with three checks showing that Eason did not make the installment payments, but rather that they were made by Humphrey.

The trial court held hearings concerning Continental’s motion for summary judgment on June 16, 2014, and January 14, 2015. At the end of the second hearing, the trial court granted Continental’s motion. This judgment was later signed as a final judgment and the Appellants appealed.

Discussion

On appeal, the sole issue before us is whether the following exclusionary provision contained in the Policy is applicable to support the trial court’s grant of summary judgment in favor of Continental:

VI. EXCLUSIONS
This insurance does not apply to any Claim alleging, arising from or related to:
[[Image here]]
J. Owned or Purchased Property
Professional Services relating to property purchased or attempted to be purchased by any of the following: an Insured; Insured’s spouse; or any entity, partnership, or trust in which the Insured or Insured’s spouse owned or controlled more than 25% ownership or financial interest.

Appellants argue that material issues of fact exist concerning the Purchase Agreement and Eason’s real role in that contract. Appellants also submit that Ea-son’s negligent act was providing them with the incorrect date they could sell the Property and validly reserve the mineral rights. However, they argue that this act resulted in their harm not because of the [914]*914Purchase Agreement, but the sale itself. Appellants aver that they did not suffer damage from Eason’s negligent act until they sold the Property , to Rolling Hills. Therefore, Appellants argue that their claim against Eason arises out of the sale of the property to Rolling Hills.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Cite This Page — Counsel Stack

Bluebook (online)
200 So. 3d 911, 2016 La. App. LEXIS 1548, 2016 WL 4204586, Counsel Stack Legal Research, https://law.counselstack.com/opinion/heath-v-continental-casualty-co-lactapp-2016.