Lucky v. Carr

264 So. 3d 693
CourtLouisiana Court of Appeal
DecidedJanuary 16, 2019
DocketNo. 52,434-CA
StatusPublished
Cited by1 cases

This text of 264 So. 3d 693 (Lucky v. Carr) 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
Lucky v. Carr, 264 So. 3d 693 (La. Ct. App. 2019).

Opinion

STONE, J.

*694The trial court awarded W. A. Lucky, III ("Lucky"), nearly $1.8 million in damages resulting from the breach of a fiduciary duty owed to him by Barbara Marie Carey Lollar ("Lollar"). Lollar now appeals, and Lucky has answered the appeal. For the reasons stated herein, we reverse the trial court's judgment.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Lollar1 lives and works in Bossier Parish as an independent contractor in the real estate business, performing various tasks on an "as needed" basis through her company, Magnolia Land Services, Inc. ("Magnolia"). From 1992 until 2003, Lucky, an extremely wealthy businessman and landowner, was a client of Lollar. Lollar's services included notarizing documents, researching titles, and assisting Lucky with sales of various properties. On a number of occasions, Lollar acted as an undisclosed agent for Lucky in real estate deals in which Lucky had an interest but did not want the sellers to inflate the prices due to his reputation and wealth. At some point during the course of their business relationship, Lollar became a close friend and confidante to Lucky and his family. Lollar had a key to the Luckys' home, spent holidays with the Luckys, and picked up their mail when the family was away at their vacation home in Florida. The family also heavily relied on Lollar during a time when Lucky was diagnosed with cancer and had to undergo treatment.

The Luckys own a large farm, and, according to Lucky, their dream was to acquire the adjoining 365-acre tract ("365 tract"). The tract was titled in the name of a company called Land Connection, Inc. ("Land Connection"), a corporation owned by Lucky's neighbor, Cal Woodward ("Woodward"). Because the two had been involved in a personal dispute, Woodward refused to sell the tract to Lucky.

At some point, Woodward did put the 365 tract up for sale, and in April of 2003, Lollar entered into a contract to purchase the tract for $425,000. She used her own funds to make an $80,000 down payment and executed a mortgage for the remaining $345,000. The note and mortgage were not assumable without Woodward's consent. Lollar made the annual installment payments until the balance of the mortgage was paid.

In September 2008, Lucky filed suit against Lollar, seeking monetary damages for breach of fiduciary duty. In his petition, Lucky asserted Lollar was acting as his agent when she purchased the 365 tract and was supposed to subsequently transfer its title to Lucky or an entity of his choosing. Lucky claimed the parties had agreed that once the title was transferred to him, he would be responsible for paying the mortgage. Although there was no written agreement between Lucky and Lollar, Lucky maintained that Lollar knew she was purchasing the property for him, and she breached her fiduciary duty by not deeding the tract to him.

Prior to trial on the matter, Lollar sold 85 acres of the tract. As of the time of trial, she still owned the remaining 280 acres. The trial court found that Lucky had established a principal-agent relationship between himself and Lollar vis-à-vis their agreement regarding the 365 tract. On that basis, the trial court found that Lollar's actions in failing to transfer the 365-acre tract to Lucky was a breach of fiduciary duty. The trial court awarded Lucky $1,799,450.52, plus judicial interest from the date of judicial demand. The *695award included funds Lollar received for lease bonuses, royalty interests, and mineral production on the tract. The award also included proceeds from the sale of a portion of the tract by Lollar. On January 18, 2018, Lucky filed a motion for new trial limited to reargument seeking an increase in the amount of the trial court's judgment. Lucky argued that he should have also been awarded the value of the surface of the remaining 280 acres. The trial court denied Lucky's motion. Lollar appeals the trial court judgment, and Lucky has answered that appeal.

DISCUSSION

In her first assignment of error, Lollar argues that the trial court committed legal error when it held that Lollar was obligated to purchase immovable property on Lucky's behalf and then transfer the title to him. According to Lollar, the trial court failed to apply Louisiana legislation and jurisprudence which require a signed, written instrument to prove a mandate for acquiring rights in immovable property.

A legal error occurs when a trial court applies incorrect principles of law and such error is prejudicial. A legal error is prejudicial when it materially affects the outcome and deprives a party of substantial rights. Lasha v. Olin Corp. , 625 So.2d 1002 (La. 1993).

"A mandate is a contract by which a person, the principal, confers authority on another person, the mandatary, to transact one or more affairs for the principal."2 La. C.C. art. 2989. "The contract of mandate is not required to be in any particular form. Nevertheless, when the law prescribes a certain form for an act, a mandate authorizing the act must be in that form." La. C.C. art. 2993. In relevant part, La. C.C. art. 1839 states: "a transfer of immovable property must be made by authentic act or by act under private signature." Finally, in pertinent part, La. C.C. art. 1832 states: "[w]hen the law requires a contract to be in written form, the contract may not be proved by testimony or presumption." In accordance with these principles, courts of this state have held that where a contract of mandate to purchase or sell immovable property is not in writing, it is invalid. E.g., Tedesco v. Gentry Dev. Inc., 540 So.2d 960, 965 (La. 1989) ; Simmons v. Clark, 08-431 (La. App. 5 Cir. 1/27/09), 8 So.3d 102, 109-110, writ denied , 09-0416 (La. 4/13/09), 5 So.3d 166.3

Professor Ronald J. Scalise, Jr., aptly explained the relationship between these Civil Code articles:

*696The Louisiana Civil Code provides that when the law requires a contract to be in written form, the contract may not be proved by testimony or by presumption, unless the written instrument has been destroyed, lost, or stolen.
....
When a writing is required for the validity of a contract, other acts related to that validity also require a writing. Thus, a mandate to buy or to sell immovable property must be in writing because the sale of immovable property requires a writing. Even a contract made in preparation of, or looking forward to, another contract that requires a writing must be made in writing also. Thus, a promise to sell, or an option to buy, immovable property must be made or granted in writing since the final sale of immovable property requires a writing.

S. Litvinoff & R.L. Scalise, 5 La. Civ. L.

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264 So. 3d 693, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lucky-v-carr-lactapp-2019.