FROM THE SIXTEENTH JUDICIAL DISTRICT COURT PARISH OF ST.
MARTIN, NO. 83622 HONORABLE GREGORY P. AUCOIN, DISTRICT JUDGE
M. Bonura 7733 Maple Street New Orleans, LA COUNSEL FOR
DEFENDANTS/APPELLEES: Thomas Moyer Sherry Craig Moyer
W. Tilly Keaty & Tilly, LLC 2701 Johnston Street, Suite
303 Lafayette, LA COUNSEL FOR PLAINTIFF/APPELLANT: Nolton
composed of Ulysses Gene Thibodeaux, Chief Judge, Sylvia R.
Cooks, and Marc T. Amy, Judges.
T. AMY, JUDGE
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.
and Procedural Background
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. The agreement set forth a $455, 000.00
purchase price 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.
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.
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
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.
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.
Dalcourt appeals. However, we do not reach the merits of the
appeal. We instead find that there is no