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Dalcourt v. Moyer

Court of Appeals of Louisiana, Third Circuit

December 18, 2019



          Mark Morovich Bonura COUNSEL FOR DEFENDANTS/APPELLEES: Thomas Moyer Sherry Craig Moyer

          John W. Tilly Keaty & Tilly, LLC COUNSEL FOR PLAINTIFF/APPELLANT: Nolton Dalcourt

          Court composed of Billy Howard Ezell, D. Kent Savoie, and Van H. Kyzar, Judges.


         Nolton 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.


         In 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.

         An 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.

         A 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.

         Approximately 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.

         Mr. 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.

         On June 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 addendum.

         On July 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.

         On 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.

         The 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.

         A trial 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.

         In 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.

         On 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.

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