Whitbeck v. Champagne

149 So. 3d 372, 14 La.App. 3 Cir. 245, 2014 La. App. LEXIS 2346, 2014 WL 4851780
CourtLouisiana Court of Appeal
DecidedOctober 1, 2014
DocketNo. 14-245
StatusPublished
Cited by9 cases

This text of 149 So. 3d 372 (Whitbeck v. Champagne) 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
Whitbeck v. Champagne, 149 So. 3d 372, 14 La.App. 3 Cir. 245, 2014 La. App. LEXIS 2346, 2014 WL 4851780 (La. Ct. App. 2014).

Opinion

CONERY, Judge.

11 Robert and Charlet Champagne (Champagnes) appeal the trial court’s ruling granting a motion for summary judgment in favor of Peter and Marissa Whit-beck (Whitbecks). The trial court found the Champagnes in default of a July 2, 2012 Louisiana Residential Agreement to Buy and Sell (Purchase Agreement),1 wherein the Champagnes agreed to purchase immovable property owned by the Whitbecks. The trial court ordered the Champagnes to specifically perform under the terms and provisions of the Purchase Agreement and pay the purchase price of $450,000.00 to the Whitbecks. The trial court also found that the Whitbecks were entitled to retain the $2,500.00 deposit given by the Champagnes and awarded $17,700.00 in attorney fees plus $2,764.35 in costs to the Whitbecks, with judicial interest from the date of judgment. The trial court denied the Whitbecks motion for summary judgment seeking an award of broker or realtor fees. The Whitbecks have answered the appeal and are seeking additional attorney fees and costs, an award of broker or realtor fees, and attorney fees and costs in connection with the appeal. For the following reasons, we affirm and award $2,500.00 in attorney fees to the Whitbecks for work done on this appeal.

FACTS AND PROCEDURAL HISTORY

The Whitbecks’ home at 111 Seagull Lane, Big Lake, Louisiana 70607 (Big Lake home) was listed on the market for sale. The Champagnes negotiated with lathe Whitbecks for the purchase of the Big Lake home and the parties subsequently agreed to a cash sale price of $450,000.00. The initial offer was made to the Whitbecks on June 30, 2012. The Whitbecks accepted the Champagnes’ offer in writing by signing the Purchase Agreement on July 2, 2012.

Under the specific provisions of the Purchase Agreement, the Champagnes had a fifteen day period to fully inspect the Big Lake home and were allowed to conduct any inspections they deemed necessary. The inspection period began to run on July 3, 2012, the day after the Whitbecks accepted the Champagnes’ cash offer, and ended on July 17, 2012.2

[376]*376During the fifteen day inspection period, the Champagnes admit they were given free rein to inspect the Big Lake home and conducted at least three viewings or inspections of the home. One of the inspections was conducted by an engineer with Spell Structural Consulting, L.L.C., and included a structural review of both the interior and exterior of the Big Lake home. The conclusion of the engineering inspector was that the interior of the Big Lake home was “in good condition and no structurally deficient issues were observed with interior finishes.”

Lin addition, the Whitbecks were required to disclose the following on the Property Disclosure Form, “Has there been property damage related to the land or the improvements thereon, including, but not limited to, fire, windstorm, flood, hail, lighting, or other property damage?” The Whitbecks responded “yes[,J” and that the repairs related to those damages, defects, and/or other conditions had been made to the Big Lake home.

During the fifteen day inspection period, the Champagnes asked for additional information about the repairs made, especially those made to the Big Lake home after Hurricane Ike. The Whitbecks responded on July 10, 2012, with a detailed listing and dates of when approximately ten repairs were made to the Big Lake home. The Whitbecks’ response was sent to the Champagnes a week before the end of the fifteen day inspection period.

Under the provisions of the Purchase Agreement, if the Champagnes found any deficiencies in the Big Lake home within the fifteen day inspection period, they could “elect in writing, to terminate the Agreement and declare the Agreement null and void,” or “indicate in writing the deficiencies and desired remedies,” giving the Whitbecks as the sellers seventy-two hours to respond in writing as to their willingness to remedy those deficiencies.3 The Champagnes did not exercise either of these options within the fifteen day inspection period.

Under the provisions of the Purchase Agreement, the Champagnes’ silence was presumed acceptance once the fifteen day inspection period expired, as the |4Purchase Agreement stated that “FAILURE TO MAKE INSPECTIONS OR TO GIVE WRITTEN NOTICE OF DEFICIENCIES AND DESIRED REMEDIES TO SELLER (OR SELLER’S DESIGNATED AGENT) AS SET FORTH IN LINES 141 THROUGH 155 WITHIN THE INSPECTION PERIOD SHALL BE DEEMED AS ACCEPTANCE BY BUYER OF THE PROPERTY’S CURRENT CONDITION.”

In addition, under the terms of the Purchase Agreement, the Champagnes agreed to accept the Big Lake home in an “ ‘as is’ condition” and to “waive, relieve and release” the Whitbecks from any further actions for redhibition and reduction of the sale price. The Champagnes also acknowledged the sale of the Big Lake home was to be made “without warranty of fit[377]*377ness for ordinary or particular use” and that both parties agreed that this language was to be part of the Act of Sale.4

Based on the Champagnes’ silence and deemed acceptance of the condition of the Big Lake home, the parties proceeded with the sale process. They mutually agreed to close the sale of the Big Lake home on Monday, July 28, 2012. However, on the morning of July 23, 2012, the Champagnes informally notified the Whitbeeks of their intention not to finalize the sale. The Champagnes indicated they had received information from a third-party that the Big Lake home had a “mold and mildew issue.” This informal notification by the Champagnes of a | ¿potential “mold and mildew issue” was the first time the Whit-becks were notified that the Champagnes had any reservations about either the condition of the Big Lake home or finalizing the sale of the property.

The next day, July 24, 2012, the Champagnes formally notified the Whitbeeks of their intention not to purchase the Big Lake home. The Champagnes gave as their only reason that they had elected “not to move forward with the purchase of the above mentioned property on the basis of non disclosure by the sellers.” They further requested “release of the escrowed funds of $2,500.00.” In response, and in order to dispel the third-party rumor of mold and mildew issues, the Whitbeeks gave the Champagnes complete freedom to take whatever steps they deemed necessary to satisfy themselves that the Big Lake home was free from mold and mildew. This offer by the Whitbeeks to the Champagnes was confirmed by Mr. Champagne under oath. He testified that his own real estate agent, Mrs. Rhonda Gas-pard, informed him that the Whitbeeks were willing to allow the Champagnes to conduct all inspections necessary to confirm that mold was not present in the Big Lake home. In an effort to break the impasse between the parties and to impress on the Champagnes the seriousness of their actions in refusing to complete the sale as per the Purchase Agreement, Mrs. Gaspard, in a July 23, 2012 correspondence, urged the Champagnes to “investigate further” in order to determine if there was a real basis for the third-party mold rumor. She also suggested that the Champagnes have someone check with a moisture meter for any moisture in the walls or tear out the sheetrock in the suspected area.

Mrs. Gaspard also told the Champagnes that her broker, Tim Flavin, was of the opinion that the Champagnes were contractually bound to close on the Big Lake home unless they could prove there was a mold problem and that it had been | (¡covered up by the Whitbeeks. Mrs.

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Bluebook (online)
149 So. 3d 372, 14 La.App. 3 Cir. 245, 2014 La. App. LEXIS 2346, 2014 WL 4851780, Counsel Stack Legal Research, https://law.counselstack.com/opinion/whitbeck-v-champagne-lactapp-2014.