Schnell v. Mendoza

105 So. 3d 874, 12 La.App. 5 Cir. 272, 2012 WL 5500529, 2012 La. App. LEXIS 1475
CourtLouisiana Court of Appeal
DecidedNovember 13, 2012
DocketNo. 12-CA-272
StatusPublished
Cited by2 cases

This text of 105 So. 3d 874 (Schnell v. Mendoza) 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
Schnell v. Mendoza, 105 So. 3d 874, 12 La.App. 5 Cir. 272, 2012 WL 5500529, 2012 La. App. LEXIS 1475 (La. Ct. App. 2012).

Opinion

WALTER J. ROTHSCHILD, Judge.

| ¡¡This litigation arises out of a contract for the purchase of immovable property executed between the parties on January 31, 2008. Following a bench trial, the court rendered judgment in favor of plaintiff. Plaintiff now appeals from this judgment. We affirm.

[876]*876On December 17, 2009, Diane R. Schnell filed the instant Petition for Damages and Intentional Interference with Contract naming as defendants Anthony Mendoza and Jane Wallain Mendoza wife of/and Hil-man Mendoza. Plaintiff alleges that she entered into a bond for deed contract with defendants for certain property located in Jefferson Parish.1 By this agreement, defendants agreed to deliver title of the property to plaintiff after payment of monthly installments and a final stipulated sum to defendants. Plaintiff alleges in the petition that defendants interfered with the performance of the contract by concealing defects in the property, failing to make repairs and misrepresenting that property was free of [«¡encumbrances. Plaintiff alleged that she was damaged as a result of breach of the agreement, and that she was forced to incur additional expenses to enjoy quiet enjoyment and peaceful possession of her home. Defendants filed an answer, generally denying all allegations of the petition.

In April of 2010, plaintiff received a Notice to Vacate the subject property for violation of the contract between the parties, including failure to pay and late payment of installments due. Thereafter, plaintiff filed a Notice of Lis Pendens in these proceedings and also sought and obtained from the trial court a temporary restraining order preventing alienation of the property while her claims against defendants were pending.

This matter was tried in a bench trial on September 27, 2011 and was taken under advisement. On December 6, 2011, the trial court rendered judgment in favor of Diane R. Schnell and against Hilman and Jane Mendoza in the amount of $10,760.75, plus costs and interest from the date of judicial demand. On the same date, the trial court issued reasons for judgment indicating that the judgment represented damages in the form of repair costs noted in the inspection report which should have been incurred by defendants.

Diane R. Schnell has filed a devolutive appeal from this judgment on the basis that the trial court erred in failing to determine that the bond for deed contract failed due to fault of defendants, thereby entitling plaintiff to the return of the deposit payment made on the property and well as return of mortgage, insurance and tax payments made by plaintiff. Ms. Schnell argues that such claims are encompassed by the scope of her petition for damages or that her pleadings were expanded at trial to include rescission of the contract and return of all sums paid.

Defendants contend that the trial court judgment is correct as plaintiff failed to assert a claim to rescind the bond for deed contract and further that the evidence ^presented at trial does not support a rescission of the contract by plaintiff. Defendants argue that the only evidence presented at trial was submitted in pursuit of the specific damage claim asserted in plaintiffs petition, and therefore the evidence presented did not enlarge the scope of plaintiffs pleading.

At trial, Ms. Schnell testified that she entered into a bond for deed contract in January of 2008 with the Mendozas for a home in Kenner. A copy of the contract was introduced into evidence, and provided that Ms. Schnell was to pay $45,000 at the time the contract was executed, $2,068.45 in monthly installments, and the remaining balance in February of 2011. She was also required to maintain insurance and pay taxes on the property. Ms. Schnell stated that although the contract also provided [877]*877that no existing mortgages applied to the property, she later discovered that two home equity mortgages as well as a lien existed at the time the contract was executed, and these encumbrances remained in effect until she brought the present litigation.

Ms. Schnell stated that she moved into the home in February of 2008 and immediately began experiencing problems with the home. She stated that many of the problems were noted on the Inspection Report prepared prior to the sale and the sellers had promised to repair these issues prior to the time she moved in. She stated she informed Anthony Mendoza of the problems but he failed to resolve the issues in a satisfactory manner. Ms. Schnell stated that she personally contracted for the repairs and paid the invoices herself. Evidence in the record includes several invoices and receipts and cancelled checks for payments for repair services relating to the Kenner home.

Ms. Schnell also testified that she paid the monthly installment payments as well as payments for taxes and insurance pursuant to the bond for deed contract through December of 2009. She stated that at this time, Mr. Mendoza cancelled Isthe contract. She therefore discontinued making the installment payments and filed the present lawsuit for damages and interference with the contract.

Anthony Mendoza testified at trial that he is the son of Jane and Hilman Mendoza, the owners of the subject property, and that he acted as his parents’ agent in the sale of the home to Ms. Schnell. Mr. Mendoza stated that his parents agreed to execute a bond for deed contract, and that he was aware that the home was inspected prior to the transfer. Mr. Mendoza stated that he approved a list of repairs to the home which were completed prior to the closing, and he submitted evidence of his response to the inspection report, although he did not produce receipts of the actual services rendered. Mr. Mendoza stated that he authorized the cancellation of the bond for deed contract in December of 2009 for Ms. Schnell’s actions in failing to timely pay the note, failing to pay late fees, and failing to pay for the necessary insurance for the home.

In rendering judgment in favor of Ms. Schnell, the trial court awarded her $10,760.75, plus costs and interest. In its reasons for judgment, the trial court found that Ms. Schnell established at trial that Mr. Mendoza misrepresented the condition of the property and failed to make agreed upon repairs as outlined in the home’s inspection report. The amount of the award reflected the repair receipts submitted into evidence. The trial court further found that the bond for deed contract was not voided by defendants’ failure to disclose encumbrances on the property. However, the court found that the issue of cancellation of the contract due to Ms. Schnell’s failure to make contractual payments was not placed before the court and thus, the award of damages could only include receipts for repairs which were covered by the inspection report.

By this appeal, Ms. Schnell contends that the trial court erred in failing to find that the bond for deed contract was invalidated by the Mendozas’ actions, and |fiin failing to award plaintiff the return of the deposit made on the property, the monthly mortgage payments, as well as insurance and tax payments. For the reasons stated herein, we find these arguments to be without merit.

It is well established that Louisiana utilizes a system of fact pleading. Cox. v. W.M. Heroman & Co., 298 So.2d 848, 855 (La.1974), overruled, on other grounds by A. Copeland Enterprises, Inc. v. Slidell Memorial Hosp., 94-2011 (La.6/30/95), 657 [878]*878So.2d 1292, 1299.

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Related

Turner v. Hidden Lake, LLC of AL
163 So. 3d 66 (Louisiana Court of Appeal, 2015)
Schnell v. Mendoza
142 So. 3d 238 (Louisiana Court of Appeal, 2014)

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Bluebook (online)
105 So. 3d 874, 12 La.App. 5 Cir. 272, 2012 WL 5500529, 2012 La. App. LEXIS 1475, Counsel Stack Legal Research, https://law.counselstack.com/opinion/schnell-v-mendoza-lactapp-2012.