Appealed
from the Twenty-Second Judicial District Court In and for the
Parish of St. Tammany State of Louisiana Docket Number
2014-13846 Honorable Richard A. Swartz, Judge Presiding
Sarabeth T. Bradley William M. Magee Covington, LA Counsel
for Plaintiff/ Appellant, Wilfred Robinson, III
Shawn
W. Rogers Louis M. Butler Mandeville, LA Counsel for
Defendants/Appellees, Mighty One, LLC & Michael
Chamberlain
Michael P. Bienvenu Baton Rouge, LA Counsel for Defendant/
Appellee, Group Integrity, LLC d/b/a Keller Williams Realty
Services
BEFORE: WHIPPLE, C.J., McDONALD, AND CHUTZ, JJ.
WHIPPLE, C.J.
This
matter is before us on appeal by plaintiff, Wilfred Robinson,
III, from a judgment of the trial court granting
Robinson's motion for partial summary judgment against
defendant, Mighty One, LLC ("Mighty One"). For the
reasons that follow, we affirm in part, reverse in part, and
remand.
FACTS
AND PROCEDURAL HISTORY
In June
of 2013, Robinson contacted Keller Williams Realty
("Keller Williams") for assistance in purchasing
undeveloped property on which to build a home. With the
assistance of his agent, Lance Williams, Robinson ultimately
entered into a "Louisiana Residential Agreement to Buy
or Sell" ("the agreement" or "the
contract") with Mighty One for the purchase of land and
construction of a new home in Covington, Louisiana.
The
agreement, dated December 13, 2013, provided that Mighty One
would build a home for Robinson at a location to be
determined at a later date, that upon acceptance, the parties
would be bound to the terms of the agreement, and that upon
acceptance, Robinson would provide a deposit in the amount of
$9, 000.00. The agreement, which was signed (initialed) by
Robinson and Mighty One, also contained default provisions
that would apply in the event of a default by either party,
which set forth that the buyer or the seller suffering a
default by the other party had the option to either declare
the agreement null and void "with no further
demand" or to demand and/or sue for: (1) termination of
the agreement; (2) specific performance; or (3) termination
of the agreement and an amount equal to 10% of the sales
price as stipulated damages, and return or retention of the
deposit. The default provisions further provided that the
prevailing party to any litigation brought to enforce
provisions of the agreement "shall be awarded attorney
fees and costs." By its terms, the initial offer made in
the December 13, 2013 agreement to buy or sell was made
binding and irrevocable until December 17, 2013, at 5:00 p.m.
Thereafter,
with regard to a final sales price for construction of the
home, which was to be determined after Robinson chose his
lot, Mighty One subsequently proposed the following counter
offer on December 17, 2013, at 3:20 p.m.:
The final sales price will be determined after Purchaser
chooses lot location, house plans/specs and a new cost
estimate is completed by the Seller. Both parties
must agree to sign the new cost estimate and agree that
estimate will be the sales price. From that point
forward any additions, changes, [or] alterations must be made
in writing, signed by both parties and paid for upfront by
Purchaser and such payment shall be [nonrefundable]. The
completion of the house must be within 180 days of the slab
being poured. [Emphasis added.]
All
other terms and conditions of the prior agreement were to
remain in effect and the "Counter Offer" would be
void if not accepted in writing by 5:00 p.m. on December 18,
2013. On December 18, 2013, at 10:19 a.m., Robinson responded
to the counter offer extended by Mighty One by replacing it
with a new counter offer, which was accepted and agreed upon
by both Robinson and Mighty One respectively on December 19,
2013 and December 20, 2013, and provided as follows:
Buyers Deposit shall be refunded and the contract declared
Null and Void in the event that a suitable property cannot be
acquired by the Seller.
The Buyers Deposit Shall be refunded and the contract shall
be Null and Void in the event that the total cost of the home
exceeds $242, 148.45 unless all parties
agree prior to finalizing final cost estimate.
Deposit shall become nonrefundable once the lot to be
built on is purchased by Seller/Builder. [Emphasis
added.]
Pursuant
to the above agreement ultimately accepted by the parties on
December 20, 2013, Robinson then tendered a check in the
amount of $9, 000.00 to Mighty One as a deposit under the
contract to purchase the lot he had chosen. On that same
date, Mighty One, in turn, entered into an agreement to
purchase with the listing agent, Gardner Realtors, to
purchase the lot for $25, 000.00. Mighty One then tendered a
deposit check, using Robinson's funds, to Gardner
Realtors in the amount of $9, 000.00, with the closing on the
lot scheduled for later in February.[1]
However,
according to Robinson, on February 6, 2014, Robinson's
agent informed him that Mighty One had decided to
unilaterally terminate and cancel the contract. After being
informed of this development, on February 7, 2014, Robinson
requested that Mighty One return his deposit and provide him
with a written cancellation "in order to move forward
toward some resolution" as to his possible purchase of
the property, all to no avail. Instead, after purportedly
being unable to obtain a return of the deposit it had paid on
the lot from Gardner Realtors, Mighty One then proceeded to
complete, in its name, the purchase of the lot previously
selected by Robinson, and on February 14, 2014, Mighty One
closed on its purchase of the lot.
After
the passage of several months without receiving the return of
his deposit, on August 25, 2014, Robinson filed a
"Petition for Breach of Contract and Fiduciary
Duty" against: Mighty One; its owner and manager,
Michael R. Chamberlain; and Keller Williams. Therein,
Robinson sought a judgment against Mighty One and Chamberlain
ordering them to either specifically perform under the terms
of the contract or, pursuant to the default provision of the
agreement, return his deposit, along with ten percent of the
sale price as liquidated damages, plus attorney's fees
and costs associated with filing the petition, and "all
damages allowed under the law."[2] ...