Rangel v. Denny

104 So. 3d 68, 2012 WL 3194962, 2012 La. App. LEXIS 1033
CourtLouisiana Court of Appeal
DecidedAugust 8, 2012
DocketNo. 47,381-CA
StatusPublished
Cited by8 cases

This text of 104 So. 3d 68 (Rangel v. Denny) 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
Rangel v. Denny, 104 So. 3d 68, 2012 WL 3194962, 2012 La. App. LEXIS 1033 (La. Ct. App. 2012).

Opinion

GASKINS, J.

|, The plaintiffs, Anthony Bryan Rangel and Bridgette Rangel, appeal from a trial court judgment sustaining an exception of no cause of action in favor of J. Wesley Dowling and Associates, Inc. (“Dowling”). For the following reasons, we reverse and remand for further proceedings.

FACTS

The plaintiffs entered into a contract in February 2010, with Dowling to sell their house situated on 40 acres of land in DeSo-to Parish. According to the allegations in the plaintiffs’ pleadings, the sale was to include mineral rights to 20 acres, the plaintiffs were to retain the mineral rights to 20 acres, and the contract provided that the plaintiffs were to inform Dowling if a prospective buyer contacted them directly. The plaintiffs alleged that, in July 2010, they were contacted by Marlon and Cynthia Curtis about buying the house, and that they notified Dowling and requested [71]*71that it provide a prospective buyer’s contract. The plaintiffs claimed that Dowling refused to do so because the company did not represent the Curtises. According to the plaintiffs, Mr. Rangel then personally drafted an agreement for the Curtises to buy the house, land and 20 acres of mineral rights, for approximately $396,000.

The plaintiffs pled, that, before the Cur-tises received approval for their loan, the plaintiffs moved out of the house and signed a six-month apartment lease, as well as a lease for a business space for Mrs. Rangel to carry on her business as a barber. The plaintiffs claimed that the Curtises were not able to obtain financing and backed out of the agreement to purchase the house. They contended that the Curtises could not get | financing for the house because their lending institution would not accept the appraisal of the house.

In June 2011, the plaintiffs filed a petition for damages against Dowling and the Curtises for negligence and for breach of contract.1 The plaintiffs alleged that the Curtises breached their contract forcing the plaintiffs to sell mineral rights to cover the cost of their mortgage, apartment rent, and expenses.

Regarding Dowling, the plaintiffs alleged that the company was obligated or owed a duty to provide professional services, negotiate the sale, provide a legal and binding contract to the Curtises, and follow through to successfully close the deal. The plaintiffs contended that Dowl-ing committed errors and omissions and breached its duty to them. The plaintiffs speculated that the Curtises knew or should have known that Dowling was obligated to provide them with an agreement to buy or sell and that they may have thought that the agreement drafted by Mr. Rangel was not binding.

On July 22, 2011, Dowling filed an exception of no cause of action. Dowling argued that under its “Exclusive Right to Sell Listing Agreement,” it only had the duty to advertise the property and if an offer was made, to present it to the sellers. Dowling asserted that it fulfilled its duty. Because Dowling did not represent the Curtises, the company claimed that it had no duty to draft an offer on their behalf to present to the plaintiffs. According |sto Dowling, the plaintiffs wanted to avoid paying a commission for a broker’s fee. Dowling maintains that it had no duty to provide the plaintiffs with a contract to bind the Curtises. The company contends that the cause-in-fact of the plaintiffs’ damages was the breach of contract by the Curtises.

The trial court sustained the exception of no cause of action filed by Dowling. The plaintiffs were given 15 days to amend their petition to assert factual allegations to support their claim. The plaintiffs filed an amended petition for damages, alleging that Dowling failed to represent them in a manner that was consistent with the customs and practices of the real estate profession and caused or contributed to the plaintiffs’ damages and injuries. The plaintiffs claimed that it is customary for real estate agents/brokers to assist the purchaser and seller with alternative means of financing when prospective buyers are turned down for loans.

The plaintiffs contended that their agreement with Dowling required the company to review the purchase offer, discuss [72]*72financing alternatives, work to successfully close the sale, and assist in reappraising the property or supplementing the appraisal. They claimed that Dowling did not do those things.

The plaintiffs claimed that it is customary for a real estate agent to assist and represent an unrepresented buyer or a buyer who does not have his/her own real estate agent. The plaintiffs contended that Dowling had a duty when representing a buyer or seller to complete the purchase agreement form prescribed by the Louisiana Real Estate Commission in | ¿making an offer to purchase or sell residential property under La. R.S. 37:1449.1.2 According to the plaintiffs, Dowling breached this duty.

The plaintiffs asserted that it is customary for real estate agents or brokers to inform or advise sellers not to move out of their house or rely on buy/sell agreements to their detriment until a loan has been made and the money has been paid. They urged that, had Dowling so advised them, they would not have moved out of their house and would not have incurred many of the damages they suffered such as apartment expenses, moving costs, business lease expenses, storage costs, additional insurance, and loss of mineral rights.

On October 26, 2011, Dowling filed another exception of no cause of action to the plaintiffs’ amended petition. Dowling claimed that it had no duty to perform the acts complained of by the plaintiffs. Dowl-ing stated that, if it did have such a duty, the plaintiffs’ damages were not caused by Dowling’s failure to perform any duties. Rather, their damages were caused by the Curtises in breaching their contract with the plaintiffs.

Dowling claimed that the plaintiffs did not allege any facts under which they would have avoided being damaged if Dowling had reviewed the contract between the plaintiffs and the Curtises or provided a purchase agreement form. Dowling asserted that it had no duty to reappraise the | ^property and did not have a duty to advise the plaintiffs not to move out of their house prior to finalizing the sale.

On November 30, 2011, the trial court entered a judgment sustaining Dowling’s exception of no cause of action. Dowling was dismissed from the suit with prejudice. In reasons for judgment, the trial court noted that the plaintiffs alleged that Dowling failed to review the purchase offer, failed to discuss financing alternatives, failed to work successfully to close the sale, and failed to assist in reappraising the property or supplementing the appraisal. The plaintiffs also claimed that Dowling failed to represent the unrepresented buyers and failed to provide a purchase agreement under La. R.S. 37:1449.1.

In its reasons for judgment, the trial court mentioned the plaintiffs’ argument that Dowling had a duty to advise them not to move out of their house until the Curtises’ loan had gone through. The court found that the plaintiffs failed to allege sufficient facts to satisfy the causation element of their claims against Dowl-ing. According to the trial court, the allegations against Dowling are based upon pure speculation that had Dowling assisted with the sale and financing, the buyers, [73]*73who had no contractual relationship with Dowling, would not have breached their contract.

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104 So. 3d 68, 2012 WL 3194962, 2012 La. App. LEXIS 1033, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rangel-v-denny-lactapp-2012.