[Copyrighted Material Omitted]
APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH, NO. 2013-01626, DIVISION " F" . Honorable Christopher J. Bruno, Judge.
James E. Uschold, JAMES E. USCHOLD, PLC, New Orleans, LA, COUNSEL FOR PLAINTIFF/APPELLANT.
Kevin O. Larmann, HAILEY, MCNAMARA, HALL, LARMANN & PAPALE, Metairie, LA, COUNSEL FOR DEFENDANT/APPELLEE/CROSS APPELLANT.
Court composed of Judge Max N. Tobias, Jr., Judge Edwin A. Lombard, Judge Sandra Cabrina Jenkins.
SANDRA CABRINA JENKINS,
[2014-1326 La.App. 4 Cir. 1] Both parties appeal the trial court's August 22, 2014 judgment awarding plaintiff the amount of defendant's deposit plus attorney's fees as stipulated damages rather than actual damages resulting from defendant's breach of an agreement to purchase plaintiff's property. For the following reasons, the judgment is affirmed.
FACTS AND PROCEDURAL HISTORY
Plaintiff, 1100 South Jefferson Davis Parkway, LLC (" South" ), and defendant, Richard H. Williams, entered into an Agreement to Purchase (" the Agreement" ) on November 17, 2008. Under the Agreement, South agreed to sell immovable property in New Orleans, Louisiana to Williams for the sum of $875,000.00. The Agreement contained an inspection period of 30 calendar days, which began the first day after the Agreement was accepted. Specifically, the inspection period provided that:
[Williams] may, at his expense, have any inspections made by experts or others of his choosing...Upon completion of Inspections, [Williams] must provide [South] with a copy of all inspection reports, and recognizes that such reports may be provided to others by [South]. If [Williams] is not satisfied with the present condition of the property as reflected in the Inspection reports, [Williams] (1) may elect, in writing, to terminate the agreement to purchase....
[2014-1326 La.App. 4 Cir. 2] In addition, the parties inserted a due diligence handwritten provision which provided " purchaser to have 30 days from acceptance of this offer to conduct due diligence." Thus, both the inspection and due diligence period were to expire on December 18, 2008.
On December 16, 2008, Williams' agent requested that the " due diligence (inspections)" period be extended an additional 30 days in order to obtain a flood elevation
certificate. The parties then signed an Extension on Agreement to Purchase which stated " the inspection period...[would] be extended from December 18, 2008 to January 19, 2009" and " all other terms and conditions of the purchase agreement are to remain in full force and effect."
By letter and e-mail dated January 14, 2009, Williams' agent sent South's agent notice that Williams was terminating the Agreement because of issues with the property's flood elevation. Thereafter, the parties mutually agreed to a cancellation agreement, which reserved all claims that either party wished to pursue, and Williams was returned his $10,000.00 deposit.
On December 28, 2010, the property was sold to a third party for $616,000.00. On February 21, 2013, South filed suit against Williams for breach of contract requesting " damages in the amount of the difference between the contract price and the actual sale price plus the amount of costs and/or fees, including expenses and reasonable attorney's ...