Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Dalcourt v. Moyer

Court of Appeals of Louisiana, Third Circuit

December 6, 2018

NOLTON DALCOURT
v.
THOMAS MOYER, ET AL.

          APPEAL FROM THE SIXTEENTH JUDICIAL DISTRICT COURT PARISH OF ST. MARTIN, NO. 83622 HONORABLE GREGORY P. AUCOIN, DISTRICT JUDGE

          Mark M. Bonura 7733 Maple Street New Orleans, LA COUNSEL FOR DEFENDANTS/APPELLEES: Thomas Moyer Sherry Craig Moyer

          John W. Tilly Keaty & Tilly, LLC 2701 Johnston Street, Suite 303 Lafayette, LA COUNSEL FOR PLAINTIFF/APPELLANT: Nolton Dalcourt

          Court composed of Ulysses Gene Thibodeaux, Chief Judge, Sylvia R. Cooks, and Marc T. Amy, Judges.

          MARC T. AMY, JUDGE

         This matter involves a failed purchase agreement for the sale of a residence. The seller and the buyers each sought relief under the terms of the agreement, alleging that the opposing party was responsible for the failure of the transaction. The trial court found numerous deficiencies in the seller's performance, awarding the return of the deposit as well as attorney fees and costs to the buyers. By the resulting judgment, the trial court ordered the buyers to submit an itemization of their attorney fees and costs for review. The trial court further ordered that, in the event the parties cannot agree to the quantum of such an award, the buyers are to file a rule to show cause for such a determination. The seller appeals. Finding that this appeal was not taken from a final appealable judgment, however, we dismiss the appeal and remand for further proceedings.

         Factual and Procedural Background

         By a June 1, 2015 Louisiana Residential Agreement to Buy or Sell, the plaintiff, Nolton Dalcourt, agreed to sell his St. Martin Parish home to the defendants, Thomas Moyer and Sherry Craig.[1] The agreement set forth a $455, 000.00 purchase price[2] and required the buyers to provide a $4, 000.00 deposit. The parties further agreed to a fourteen-day inspection and due diligence period. They designated a June 30, 2015 closing date.

         According to Mr. Moyer's testimony at trial, following the close of the inspection and due diligence period, he began to have concerns regarding the boundary lines of the property. He further became aware of a utility servitude burdening the property which, he contended, was not previously disclosed. The Moyers thereafter forwarded a June 27, 2015 addendum to Mr. Dalcourt, apprising him that: "Buyer elects to make contract void with return of four thousand ($4, 000.00) deposit." The record indicates that Mr. Dalcourt did not sign that addendum and, as evidenced by the present proceeding, the sale was not completed. Upon the parties' competing claims for the deposit, the broker jointly representing the parties in the subject transaction disbursed the deposit to Mr. Dalcourt.

         Mr. Dalcourt instituted this matter in January 2016, naming the Moyers as defendants and alleging that they were in default by refusing to purchase the residence. Referencing the purchase agreement's provision for stipulated damages, Mr. Dalcourt asserted that he elected to "terminate the agreement and recover an amount equal to ten (10%) of the Sale Price." He further sought attorney fees and penalties under the terms of the agreement as well as lease payments that he asserted were incurred as a result of the failed agreement.

         By their answer, the Moyers denied their liability for the failed transaction. They further alleged that Mr. Dalcourt was in breach of the purchase agreement due to alleged misrepresentations as to the size of the property and purported encroachments. The Moyers further cited difficulties allegedly encountered in the inspection process and in an attempt to have the property surveyed. The Moyers sought judgment in their favor.

         Following a trial, the trial court ruled in favor of the Moyers upon a finding of various deficiencies in Mr. Dalcourt's performance. The trial court ordered the return of the deposit to the Moyers and awarded them attorney fees and costs. By the resulting judgment, the trial court ordered the buyers to submit an itemization of their attorney fees and costs for review. The trial court further ordered that, in the event the parties cannot agree as to the quantum of such an award, the buyers are to file a rule to show cause for such a determination.

         Mr. Dalcourt appeals. However, we do not reach the merits of the appeal.[3] We instead find that there is no ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.