Taylor v. Dowling Gosslee & Associates, Inc.

22 So. 3d 246, 2009 La. App. LEXIS 1728, 2009 WL 3190474
CourtLouisiana Court of Appeal
DecidedOctober 7, 2009
DocketNo. 44,654-CA
StatusPublished
Cited by29 cases

This text of 22 So. 3d 246 (Taylor v. Dowling Gosslee & Associates, Inc.) 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
Taylor v. Dowling Gosslee & Associates, Inc., 22 So. 3d 246, 2009 La. App. LEXIS 1728, 2009 WL 3190474 (La. Ct. App. 2009).

Opinion

STEWART, J.

hThe plaintiffs, Larry Taylor and TSC, Inc., (hereafter “TSC”), sued the defendants, Dowling, Gosslee & Associates, James S. Dowling, and West Viking Drive, L.L.C. (hereafter “WVD”) for damages and rescission of a sale of land from TSC to WVD. Taylor’s claims were dismissed on an exception of no right of action, and TSC’s claims were dismissed on summary judgment. The plaintiffs now appeal the dismissal of their claims and other rulings by the trial court on an exception of prescription and a motion in limine. For the reasons explained in this opinion, we affirm.

FACTS

This matter arises from a sale by TSC of 9.5 acres of land located in Bossier Parish to WVD on October 23, 2001. TSC is a corporation wholly owned by Taylor. WVD is a shell company used to purchase property for Builder’s Supply, a concrete production business owned by Grady Golden and Carleton Golden. WVD was represented in negotiating the purchase by James S. Dowling (hereafter “Dowling”), a manager of WVD and a principal in the real estate firm Dowling, Gosslee & Associates.

In the early part of 2001, WVD acquired a piece of property referred to in the record as the “Adger tract” located between Benton Road and the Red River. Taylor and TSC owned the land to the north and the west of the Adger tract. Seeking land adjacent to the Adger tract and additional frontage on the river, WVD through Dowling approached Taylor and began negotiations.

On February 22, 2001, WVD proposed a buy-sell agreement for the purchase of 24 acres of TSC’s property. This agreement included |2conditions requiring disclosure prior to closing of the buyer’s identity, the intended use of the property, and the likely vehicular traffic. The parties did not execute this agreement. WVD and TSC did execute a second buy-sell agreement dated March 13, 2001, for the proposed sale of the same acreage for a price of $240,000. This second agreement included a screening provision requiring the buyer to notify the adjacent landowner of its plans once it begins development and, upon request, to plant trees or bushes along the boundary. Due to TSC’s failure to clear title issues, WVD canceled the agreement.

The parties executed a third buy-sell agreement on July 26, 2001, for the sale of approximately 9.5 acres owned by TSC north of the Adger tract. This agreement did not provide for disclosure of the true buyer and did not include a screening provision.

Notably, all three buy-sell agreements included the following provision, referred [250]*250to as a merger and integration clause, which states:

6. Entire Agreement: This Contract, including all exhibits and amendments attached hereto, if any, constitutes the entire understanding and agreement between Buyer and Seller and supersedes all prior and contemporaneous agreements, understandings, negotiations, offers, promises and discussions, whether oral or written. There are no warranties, representations or agreements between Buyer and Seller in connection with this Contract or transaction contemplated herein, except as set forth herein.

The sale closed on October 23, 2001, when the cash sale deed for a price of $112,160.40 was executed by Dowling on behalf of WVD and by Taylor as president of TSC.

|3In February 2002, Taylor filed an application with the Bossier City-Parish Metropolitan Planning Commission (“MPC”) to rezone 65 acres of land owned by him and TSC for the purpose of developing a residential subdivision. Most of the property that was the subject of the application was zoned 1-2 for heavy industrial uses. The property sold by TSC to WVD was also zoned 1-2. WVD through Dowling opposed the rezoning along with Builder’s Supply and other businesses operating in the area. Both the MPC and the Bossier Parish Policy Jury rejected the request to rezone the 1-2 property. The denial was upheld by this court in TSC, Inc. v. Bossier Parish Police Jury, 38,717 (La.App. 2d Cir.7/14/04), 878 So.2d 880, writ denied, 2004-2317 (La.11/19/04), 888 So.2d 203.

On March 17, 2003, TSC and Taylor filed suit against WVD, Dowling, and Dowling, Gosslee & Associates seeking rescission of the sale and damages.1 They alleged that during negotiations Dowling was made aware of the plans to develop the rest of the TSC and Taylor properties for residential and commercial purposes and that he made the following misrepresentations:

1. Knowing that Builder’s Supply intended to use the property as another location for its business, Dowling represented that the undisclosed purchaser wanted the property “solely for investment purposes” and had no immediate plans for development that would interfere with the petitioner’s development plans.
2. Dowling represented that he was interested in either becoming a partner in plaintiffs’ residential development or marketing the development through his firm, Dowling, Gosslee & Associates.
|43. Dowling stated on several occasions that the parties needed to hurry and close the sale so that they could move forward with the residential development plans.

The petition further alleges that after making these representations, Dowling and WVD opposed the rezoning application, effectively blocking the plaintiffs’ planned residential development and causing damages.2

[251]*251The defendants’ answers denied the allegations of the petition, and WVD specifically alleged no right of action by Taylor. On May 16, 2006, WVD filed a motion for summary judgment and an exception of prescription as to the claims asserted by the plaintiffs. Both were denied by the trial court.

In February 2006, petitioners filed an amended and restated petition alleging that Carleton Golden had conducted an unauthorized credit check on Taylor in violation of federal law and that as chairman of the Greater Bossier Parish Economic Foundation, Golden caused a letter opposing rezoning to be sent to the Bossier Parish Police Jury.

WVD filed two motions in limine regarding the new allegations. The first was to exclude evidence of actions alleged to have been taken by defendants after the sale to frustrate the rezoning of Taylor’s and TSC’s properties. The trial court denied the motion.

WVD’s second motion in limine along with an exception of prescription were filed in response to the credit check allegations. The trial | r,court granted this motion and exception. It determined that any cause of action based on the credit check would have prescribed and that the highly prejudicial nature of the evidence outweighed any probative value it might have in proving the allegations of fraudulent inducement of the sale.

Dowling and WVD also filed exceptions of no right of action as to Taylor. They argued that he was not a party to the sale between TSC and WVD and that he had no individual right of action to recover for acts damaging to the corporation. The trial court granted the exception, dismissing the Taylor’s claims.

Dowling and WVD then filed motions for summary judgment on TSC’s claims. They argued that the merger and integration provision in the buy-sell agreement precluded the introduction of parol evidence of any oral promises or agreements made in connection with the sale. They also argued that the alleged representations by Dowling cannot be considered fraud as they were promissory in nature and related to future use of the property.

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Bluebook (online)
22 So. 3d 246, 2009 La. App. LEXIS 1728, 2009 WL 3190474, Counsel Stack Legal Research, https://law.counselstack.com/opinion/taylor-v-dowling-gosslee-associates-inc-lactapp-2009.