FROM THE SIXTEENTH JUDICIAL DISTRICT COURT PARISH OF ST.
MARTIN, NO. 83622 HONORABLE GREGORY P. AUCOIN, DISTRICT JUDGE
Morovich Bonura COUNSEL FOR DEFENDANTS/APPELLEES: Thomas
Moyer Sherry Craig Moyer
W. Tilly Keaty & Tilly, LLC COUNSEL FOR
PLAINTIFF/APPELLANT: Nolton Dalcourt
composed of Billy Howard Ezell, D. Kent Savoie, and Van H.
HOWARD EZELL JUDGE
Dalcourt appeals a trial court judgment finding he breached a
purchase agreement to sell his house and holding he owed
costs and attorney fees to the potential buyers. Mr. Dalcourt
argues that it was the buyers who breached the agreement.
2014, Mr. Dalcourt decided to sell his house situated on 4.1
acres in St. Martinville, Louisiana. Sherry and Thomas Moyer
contacted Dennis Jones, the agent who listed the house, about
purchasing the house. Mr. Jones became a dual agent for both
the buyers and the seller at the Moyers' request. On June
1, 2015, the parties agreed that the Moyers would purchase
the property for $455, 000.00. An addendum provided that Mr.
Dalcourt would give the Moyers $35, 000.00 as an allowance
for repairs which would be withheld from the proceeds at
closing. Mr. Dalcourt also agreed to leave the pool table
upstairs, the workout equipment, and the theater room
seating. The closing date was set for June 30, 2015. A due
diligence period of fourteen days, commencing the first day
after the agreement was accepted, was set for the Moyers to
have an expert inspect the property and investigate other
concerns that the buyers may have.
inspection of the house was performed by an inspector on the
last day of the due diligence period, June 15, 2015. Mr.
Moyer expressed concerns after the inspection about a leaking
air conditioner, clogged gutters, and wood damage. He did not
express a concern that the shed could not be inspected. The
parties came to an agreement, and an addendum to the purchase
agreement was signed by both the Moyers and Mr. Dalcourt on
June 16, 2015. The addendum provided a reduced purchase price
of $416, 000.00, with the seller paying $12, 000.00 in
closing costs, and the repair allowance of $35, 000.00 was
voided from the contract. Evidence in the record indicates
that the lender would not approve of withholding $35, 000.00
from the proceeds at closing.
couple of days following the inspection, Mr. Moyer used some
software to lay out the property with measurements he had
taken of the home and property with a tape measure. He
concluded that the property line would split the driveway in
half. He based his conclusion on representations from Mr.
Jones as to the location of the boundary lines on the
property. Mr. Jones told Mr. Moyer that the cut area around
the property was the boundary. Mr. Moyer opined that the
property was not as wide as suggested by Mr. Jones. Mr. Moyer
then called Mr. Jones and requested a survey. He was told by
Mr. Jones that Mr. Dalcourt had a survey. Mr. Dalcourt
testified that he never had a survey and had no idea why Mr.
Jones would tell Mr. Moyer that he did.
three days before the closing set for June 30, Mr. Dalcourt
was notified that there was a question about encroachment
issues and the boundaries of the property. Mr. Jones called
Mr. Dalcourt and asked if Mr. Moyer could send someone out to
perform a survey that day and locate the stakes. Mr. Dalcourt
testified that no one was home that day but that any other
day would be acceptable.
Moyer testified that he contacted a real estate attorney
after he could not get a survey and was told that there was a
twenty-foot servitude on the right side of the home, which
coupled with the width of the home, would have the driveway
encroaching on the neighboring property.
27, 2015, the Moyers signed an addendum to the purchase
agreement stating they wished to void the contract and
seeking return of the $4, 000.00 deposit. Mr. Dalcourt
attempted to salvage the sale and submitted another signed
addendum on July 15, extending the closing date to on/or
before August 15, to allow time to survey the property. This
addendum listed the sales price at $416, 000.00, with Mr.
Dalcourt paying $12, 000.00 in closing costs and prepaid
items. The addendum also provided for additional conditions
concerning the survey. If the survey showed no encroachment
of the driveway onto the neighboring property, the Moyers
would assume the cost of the survey and the $4, 000.00
deposit would be awarded to Mr. Dalcourt if they did not
purchase the property. If there was an encroachment that
prevented the Moyers from purchasing the property, Mr.
Dalcourt would be entitled to remedy the issue per the
purchase agreement. If Mr. Dalcourt was unable to remedy the
agreement, then the $4, 000.00 deposit would go to the
Moyers. The addendum further provided that the Moyers order
an appraisal and title work within twenty-four hours of
signing the addendum by all parties, and Mr. Dalcourt would
order a survey within twenty-four hours of signing the
addendum by all parties. The repair allowance of $35, 000.00
would be voided from the contract. The pool table upstairs,
the workout equipment, and theater room seating would remain
with the property. Other than closing date, no other
deadlines were extended. The Moyers never signed this
19, 2015, Nancy Marcotte, broker of the Keller Williams
company that listed the house, sent a letter to the Moyers
explaining why she was giving the $4, 000 deposit to Mr.
Dalcourt. The house was later foreclosed on by Mr.
Dalcourt's bank and sold.
February 8, 2016, Mr. Dalcourt filed suit against the Moyers
claiming that they were in default of the purchase agreement
and seeking termination of the agreement and stipulated
damages of 10% of the sales price. He also sought attorney
fees and costs. Additionally, Mr. Dalcourt sought
compensation for the rent he paid to live in another
residence when he had to lease other property in anticipation
of the sale of the house.
Moyers answered the suit and denied liability alleging that
Mr. Dalcourt misrepresented the size of the property. They
further allege that Mr. Dalcourt failed to allow them to
inspect the property or to have it surveyed. The Moyers also
claimed that there were encroachments that affected ingress
and egress out of the property.
of the matter was held on November 21, 2017. The trial court
ruled in favor the Moyers ordering the return of the $4,
000.00 deposit to the Moyers. The trial court also awarded
attorney fees and costs to the Moyers. Mr. Dalcourt then
appealed the judgment this court.
Dalcourt v. Moyer, 18-412 (La.App. 3 Cir. 12/6/18),
260 So.3d 694, this court found that the trial court's
judgment was not a final, appealable judgment because the
judgment failed to specify an amount awarded in attorney fees
and costs and only asked for an itemization of attorney fees
and costs. The judgment further stated that if the parties
could not agree as to the amount, the Moyers should file a
rule to show cause for such a determination. This court
dismissed the appeal and remanded the case for further
proceedings because the judgment did not indicate the amount
of recovery with certainty and precision.
remand, a supplemental judgment was entered on February 1,
2019, with the trial court awarding attorney fees and costs
in the amount of $13, 981.96. Mr. Dalcourt then filed the
present appeal. On appeal, Mr. Dalcourt asserts two
assignments of error. He first claims the trial court erred
in not applying the clear and unambiguous language of the
agreement when it found that the Moyers did not breach the
contract by terminating the agreement after the deadline to
do so had passed. In his second assignment of error, Mr.
Dalcourt claims the trial court erred in finding him in
default of the agreement when it found he had the obligations
to disclose information and allow access to property when no
such language in the contract obligated him to do so.