LATTER & BLUM, INC.
TERESA DITTA, M.D. AND FRANK M. SCURLOCK TERRI DITTA, M.D. AND LATTER & BLUM INC.
FRANK M. SCURLOCK
FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2013-08821 C\W
2013-08832, DIVISION "I-14" Honorable Piper D.
A. Ricci Michael S. Ricci Jonathan L. Schultis Brian G. LeBon
RICCI PARTNERS, LLC COUNSEL FOR PLAINTIFFS/APPELLANTS
Charles L. Stern, Jr. Ryan M. McCabe Elise M. Henry STEEG LAW
FIRM, LLC COUNSEL FOR DEFENDANT/APPELLEE
composed of Chief Judge James F. McKay, III, Judge Terri F.
Love, Judge Rosemary Ledet
Rosemary Ledet Judge
a consolidated concursus and damages action. This action
arises out of an alleged breach of an agreement to purchase
immovable property and resulting forfeiture of the deposit.
Following a bench trial, the trial court rendered judgment in
favor of the defendant-purchaser, Frank Scurlock, and against
the plaintiff-seller, Teresa ("Terri") Ditta, M.D.,
and her real estate agent, Latter & Blum, Inc. The trial
court also awarded Mr. Scurlock the return of his $100, 000
deposit, which the real estate agent had deposited into the
registry of the court. For the reasons that follow, we
AND PROCEDURAL BACKGROUND
28, 2013, Dr. Ditta, as seller, and Mr. Scurlock, as buyer,
entered into a Louisiana Residential Agreement to Buy or Sell
(the "Agreement"). The Agreement was for the
purchase of a mansion located at 3711 St. Charles Avenue in
New Orleans, Louisiana-an approximately 18, 000 square feet
lot (the "Property"). In the Agreement, the
Property is described as "including all buildings,
structures, components parts, and . . . all fences." The
purchase price was $3, 400, 000. The parties agreed to divide
the purchase price into the following two parts: (i) the
immovable property-specifically including the fences-to be
sold for $1, 800, 000; and (ii) certain
furnishings-miscellaneous household goods-and a limousine to
be sold for $1, 600, 000. The Agreement was an "all
cash" sale. In addition to the purchase price, the
Agreement required Mr. Scurlock to make a deposit of $100,
000 to be held in escrow by Latter & Blum.
exchange for Mr. Scurlock's payment of the deposit and
the purchase price, the Agreement obligated Dr. Ditta to
deliver a merchantable title at closing; the Agreement
provided as follows:
The SELLER shall deliver to BUYER a merchantable title at
SELLER's costs. . . . SELLER's inability to deliver
merchantable title within the time stipulated herein shall
render this Agreement null and void, reserving unto BUYER the
right to demand the return of the Deposit and to recover from
SELLER actual costs incurred in processing of sale as well
legal fees incurred by BUYER.
25, 2013, the day before the scheduled closing, Mr.
Scurlock's previous attorney and the closing
attorney-Ewell "Corky" Potts, III-sent an email to
Dr. Ditta's attorney-James Mounger. In this email, Mr.
Potts acknowledged that judgment and mortgage issues had been
addressed properly; however, he raised issues regarding fence
encroachments and misalignments. Mr. Potts stated that the
new survey, dated July 17, 2013, revealed fence encroachments
or misalignments by the Property onto adjoining properties.
Mr. Potts also stated that he had reviewed "the
lawsuit" and had not found "a resolution to the
boundary dispute with the adjoining owner which was purported
to be 4 S Investments, LLC" (the "2005
Lawsuit"). For these reasons, Mr. Potts, on Mr.
Scurlock's behalf, invoked the thirty-day automatic
extension provided for in the Agreement. The closing was
rescheduled for August 26, 2013.
to cure the alleged fence encroachment and misalignment
issues, Dr. Ditta, assisted by her two attorneys, Mr. Mounger
and Lawrence Genin, executed boundary agreements with the
owners of each of the following three adjoining properties:
1628 Amelia Street, 1615-17 Peniston Street, and 3721 St.
Charles Avenue. Dr. Ditta spent approximately $6, 000 to
secure the three boundary agreements. By the three boundary
agreements, the parties agreed to the boundary lines
reflected by the existing fence surrounding the Property. As
the trial court noted, "Dr. Ditta testified that it was
her intent to resolve the alleged-encroachments before the
August 26th closing date."
August 18, 2014-eight days before the closing date-Mr.
Scurlock sent an email to multiple recipients, including Dr.
Ditta and Mr. Potts (the "Email"). In the Email,
Mr. Scurlock alluded to his contentious divorce proceeding;
he stated that his soon-to-be former wife, Patricia Scurlock
("Patty"), and her legal team were "trying to
control" him. Expressing his desire to cancel the
purchase of the Property, Mr. Scurlock stated:
Corky [Potts], I am not going to show up for the St. Charles
closing on August 26th as well so [P]atty will share equally
in the default provisions of that as well. This was to be my
birthday present that [R]egions was financing[, ] but I will
forgo that as well without settlement and documents in place.
Amy with [R]egions was close to funding that.
August 22, 2013, Dr. Ditta's attorneys recorded the three
boundary agreements in the Orleans Parish conveyance records.
On that same date, one of Dr. Ditta's attorneys, Mr.
Genin, sent a letter to Mr. Potts seeking information on
whether Mr. Scurlock was going to purchase the Property. The
letter stated that if Mr. Scurlock was going to default, as
he stated in the Email, Dr. Ditta would pursue the $100, 000
deposit, which was in escrow. Mr. Genin further stated that
his "client is ready, willing, and able to conclude this
matter at any time and place so designated" and that
"all requirements to deliver merchantable title to the
buyer have been met."
August 26, 2013, Mr. Scurlock, as he stated in the Email,
failed to appear at the closing; however, his attorney, Mr.
Potts, attended. In lieu of closing, Mr. Potts performed a
procès verbal in which he explained that
significant title deficiencies regarding the fence
encroachments still remained, rendering the property
unmerchantable. Mr. Potts also advised that Mr. Scurlock was
not accepting title to the Property because the title was
thereafter, Latter & Blum notified Mr. Scurlock that he
was in default. On September 11, 2013, Mr. Scurlock made a
second offer to purchase the Property for $1, 800, 000; this
offer was rejected. On September 18, 2013, Dr. Ditta sold the
property to a third party, Bob G. Dean, Jr., for $2, 100,
000. The movables were auctioned.
litigation began when both Mr. Scurlock and Dr. Ditta
requested that Latter & Blum release the $100, 000
deposit to them. On September 17, 2013, Latter & Blum
filed the instant concursus action pursuant to La. R.S.
37:1435(H) to resolve the dispute over the deposit; it
deposited the $100, 000 into the registry of the court. In
the concursus action, Latter & Blum named as defendants
Dr. Ditta and Mr. Scurlock. Both Dr. Ditta and Mr. Scurlock
answered the concursus action and named a
defendant-in-reconvention. Dr. Ditta named Mr. Scurlock; Mr.
Scurlock named his former wife, Ms. Scurlock.
September 18, 2013, Dr. Ditta and Latter & Blum jointly
filed a damages action against Mr. Scurlock (the
"Damages Action"). In the Damages Action, Dr. Ditta
requested damages for breach of the Agreement; Latter &
Blum requested the commission that it would have earned had
the sale occurred. On November 24, 2015, the trial court
granted the parties' joint motion to transfer the
later-filed Damages Action to the same division as the
earlier-filed concursus action and to consolidate the two
actions for trial.
October 31, 2014, Dr. Ditta filed a motion for partial
summary judgment in the concursus action, which had not yet
been consolidated with the Damages Action. She contended that
there was no genuine issue of material fact in dispute as to
whether Mr. Scurlock breached the Agreement. According to Dr.
Ditta, Mr. Scurlock, by the Email, anticipatorily breached
the Agreement; defaulted under the Agreement; and thus was
liable to her. She also contended that the Property was
merchantable and that any alleged defect was cured when she
executed the boundary agreements, for consideration, with the
adjoining property owners.
trial court denied Dr. Ditta's motion for partial summary
judgment. This court denied Dr. Ditta's writ application.
Latter & Blum, Inc. v. Ditta, 15-160 (La.App. 4
Cir. 3/25/15) (unpub.). In so doing, this court
stated that "[considering that genuine issues of fact
exist in relation to the merchantability of 3711 St. Charles
Avenue, the trial court properly denied relator's motion
for partial summary judgment on January 13, 2015."
2016, a three-day bench trial was held. Following the trial,
the trial court took the matter under advisement. On October
10, 2016, the trial court rendered judgment in Mr.
Scurlock's favor, finding:
• [Mr.] Scurlock has established by a preponderance of
the evidence that the title to Dr. Ditta's property was
not merchantable on the scheduled closing date. Therefore, he
was not required to buy the [Property and is entitled to the
$100, 000 deposit presently held in the Court's registry.
• [Mr.] Scurlock's 18 August 2013 email did not
anticipatorily breach the purchase agreement. Accordingly,
[Dr.] Ditta's claims for damages, along with Latter &
Blum's $156, 367.62 claim for sales commissions, are
appeal by Dr. Ditta and Latter & Blum (the
findings are reviewed under "the manifest error-clearly
wrong standard, which precludes the setting aside of a
district court's finding of fact unless that finding is
clearly wrong in light of the record reviewed in its
entirety." Hall v. Folger Coffee Co., 03-1734,
p. 9 (La. 4/14/04), 874 So.2d 90, 98 (citing Cenac v.
Public Access Water Rights Ass'n, 02-2660, p. 9,
(La. 6/27/03), 851 So.2d 1006, 1023). Under the manifest
error standard, "the issue to be resolved by a reviewing
court is not whether the trier of fact was right or wrong,
but whether the factfinder's conclusion was a reasonable
one." Stobart v. State through Dep't of Transp.
& Dev., 617 So.2d 880, 882 (La. 1993). The manifest
error standard of review also applies to mixed question of
law and fact. Brasseaux v. Town of Mamou, 99-1584,
pp. 7-8 (La. 1/19/00), 752 So.2d 815, 820-21. Questions of
law are reviewed using the de novo standard.
2400 Canal, LLC v. Bd. of Sup'rs of Louisiana State
Univ. Agr. & Mech. College, 12-0220-22, p. 5
(La.App. 4 Cir. 11/7/12), 105 So.3d 819, 824.
Dr. Ditta and Latter & Blum assert about a dozen
assignments of error,  we find that this appeal presents only two
issues: (i) anticipatory breach of contract; and (ii)
merchantability of title. We separately address each issue.
courts have recognized the doctrine of anticipatory breach of
contract. The doctrine of anticipatory breach of
contract "'applies when an obligor announces he will
not perform an obligation which is due sometime in the
future.'" Fertel v. Brooks, 02-0846, p. 13
(La.App. 4 Cir. 9/25/02), 832 So.2d 297, 305 (quoting
Gulf Coast Bank & Trust Co. v. Rick Granger
Enterprises, 2001-0656, p. 3 (La.App. 3 Cir. 10/31/01),
800 So.2d 402, 404 (quoting B & G Crane Service, Inc.
v. Aetna Cas. and Sur. Co., 586 So.2d 710, 712 (La.App.
3rd Cir. 1991)). Under those circumstances, "[t]he
obligee need not wait until the obligor fails to perform for
the contract to be considered in breach." Id.
The jurisprudence, however, ...