Young v. Tolintino

26 So. 3d 835, 2009 WL 4291775
CourtLouisiana Court of Appeal
DecidedDecember 2, 2009
Docket44,631-CA
StatusPublished
Cited by7 cases

This text of 26 So. 3d 835 (Young v. Tolintino) 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
Young v. Tolintino, 26 So. 3d 835, 2009 WL 4291775 (La. Ct. App. 2009).

Opinions

GASKINS, J.

liThe defendant, Sharon Miles Tolintino, appeals from a trial court ruling denying her motion for summary judgment and granting summary judgment in favor of the plaintiff, James A. Young, ordering specific performance of an agreement to buy and sell property. For the following reasons, we affirm the granting of the summary judgment and remand to correct the judgment.

FACTS

On December 6, 2005, the parties entered into an agreement to buy and sell property. The defendant had a partial ownership interest in two pieces of property in south Bossier Parish. One tract was located in Sections 33 and 34, Township 17 North, Range 11 West. The other was located in Sections 3 and 4, Township 16 North, Range 11 West. The plaintiff agreed to purchase all the defendant’s interest in these tracts for $400 per acre. There were mineral royalty payments of $1,500 per month on the tract in Sections 33 and 34. One-half of the mineral interest was to be transferred to Mr. Young for the price of $27,000. No mineral income was present on the other property; all mineral interests in that tract were to be conveyed to the plaintiff.

Mr. Young agreed to transfer to Ms. Tolintino not less than two acres fronting Chinanook Road in Section 3, Township 16 North, Range 11 West for $5,000 per acre and the minerals were reserved. He paid partial consideration of $1,000 to Ms. To-lintino to be applied to the purchase price. The closing was to be scheduled as soon as reasonably possible.

|2Ms. Tolintino claims that on January 20, 2006, she met with Mr. Young at his place of business and told him that she wanted to revoke the buy and sell agreement. She asserted that she tried to refund to Mr. Young the $1,000 he paid in consideration of the agreement, but he refused to accept the money or release her from the agreement.

On February 9, 2006, Mr. Young sent a letter to Ms. Tolintino, informing her that the survey of the property had been completed. He gave her the option to cancel the agreement by returning his money by 5:00 p.m. on February 17, 2006. Otherwise, the contract would remain in effect and they would proceed with the closing. [837]*837Ms. Tolintino did not return the money-paid by Mr. Young in accordance with the deadline. The buy and sell agreement was filed into the Bossier Parish records on February 22, 2006.

According to Ms. Tolintino, in May and August 2006, she again attempted to refund the $1,000 to Mr. Young and he refused to accept it, maintaining that he was also entitled to repayment for the cost of surveying the property subject to the agreement. Ms. Tolintino claims that on June 5, 2007, a certified letter was mailed to Mr. Young stating her wish to revoke the contract and enclosing a check for $1,120.60, the original $1,000 plus interest. She asserts that Mr. Young did not claim that letter, but he did receive another letter and refund check on July 6, 2007, that she sent to him. Mr. Young’s attorney said that his client did not cash the check. Approximately three months later, on October 15, 2007, Mr. Young’s |8attorney said that his client did not want to rescind the agreement and that suit would be filed within 15 days.

On July 10, 2008, Mr. Young filed a petition for specific performance, alleging that the defendant failed to move forward with the agreement. On July 31, 2008, Ms. Tolintino answered, insisting that the agreement was dissolved and the obligation terminated when she gave the $1,000 back to Mr. Young, with interest. She also claimed that he did not set the closing within a reasonable time as required by the contract.

On October 9, 2008, Mr. Young filed a motion for summary judgment, claiming that Ms. Tolintino did not tender his money until after the deadline set in his letter. Because she waited too long to attempt to cancel the agreement, he argued that the agreement was still in effect. He claimed that there is no genuine issue of material fact and that he is entitled to specific performance of the agreement. In opposition to this motion, Ms. Tolintino responded that there was a genuine issue of material fact as to whether she revoked the buy and sell agreement before it was accepted.

On November 3, 2008, Ms. Tolintino filed a motion for summary judgment, contending that in January, May and August 2006, she tried to return Mr. Young’s money, but he declined to release her from the agreement until she paid for the survey of the property which she refused to do. She maintained that the agreement between the parties was a revocable offer to sell the property and that she revoked her offer by attempting to refund Mr. Young’s money.

|4A hearing on the motions was held in the trial court on January 12, 2009. Mr. Young argued that the contract to buy and sell in this case is a completed contract and not an offer to sell the property. He urged that cancellation of the agreement did not occur within the time limit he set in his letter. Ms. Tolintino claimed that she frequently traveled between Louisiana and California and there was no showing that she received Mr. Young’s demand letter in a timely fashion.

The trial court found that the parties had a valid buy and sell agreement, not an offer to sell. Accordingly, the trial court ruled in favor of the plaintiff and rejected the claims of the defendant. A judgment granting Mr. Young’s motion for summary judgment, ordering specific performance, and denying Ms. Tolintino’s motion, was signed and filed January 12, 2009. Ms. Tolintino appealed.

SUMMARY JUDGMENT

Ms. Tolintino argues that the trial court erred in granting summary judgment in favor of Mr. Young and denying her motion for summary judgment. She maintains that the agreement between the par[838]*838ties was a revocable offer to sell and not a completed agreement to buy and sell. According to Ms. Tolintino, the time limit for closing was specified only “as soon as reasonably possible.” She claims that the ambiguity of this phrase created a genuine issue of material fact, making the granting of summary judgment in favor of Mr. Young inappropriate.

Ms. Tolintino also asserts that the issue of whether she revoked her offer to sell the property is a genuine issue of material fact. She argues that ^acceptance of the offer required closing on the sale. Because there was no acceptance, she maintains that there was no enforceable agreement. Ms. Tolintino urges that she revoked her offer to sell and the revocation was effective when the buyer received it prior to acceptance. She claims that the agreement was abrogated and any obligation between the parties was extinguished.

Legal Principles

Summary judgments are reviewed de novo on appeal using the same criteria that govern a district court’s consideration of whether summary judgment is appropriate; whether there is any genuine issue of material fact, and whether the movant is entitled to judgment as a matter of law. Louisiana Safety Association of Timbermen-Self Insurers Fund v. Louisiana Insurance Guaranty Association, 2009-0023 (La.6/26/09), 17 So.3d 350.

A motion for summary judgment will be granted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law.” La. C.C.P. art. 966(B).

In 1997, the legislature enacted La. C.C.P. art. 966(C)(2), which further clarified the burden of proof in summary judgment proceedings.

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Young v. Tolintino
26 So. 3d 835 (Louisiana Court of Appeal, 2009)

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Bluebook (online)
26 So. 3d 835, 2009 WL 4291775, Counsel Stack Legal Research, https://law.counselstack.com/opinion/young-v-tolintino-lactapp-2009.