Peter Joseph Whitbeck, Et Ux. v. Robert Joseph Champagne, Jr., Et Ux.

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

14-245

PETER JOSEPH WHITBECK, ET UX.

VERSUS

ROBERT JOSEPH CHAMPAGNE, JR., ET UX.

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APPEAL FROM THE
THIRTY-EIGHTH JUDICIAL DISTRICT COURT
PARISH OF CAMERON, NO. 10-19086
HONORABLE PENELOPE QUINN RICHARD, DISTRICT JUDGE

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JOHN E. CONERY
JUDGE

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Court composed of Sylvia R. Cooks, Jimmie C. Peters, and John E. Conery, Judges.

AFFIRMED.

Raymond B. Landry
Richard L. Traina
Mollere, Flanagan & Landry L.L.C.
2431 Metairie Road
Metairie, Louisiana 70001
(504) 837-4950
COUNSEL FOR DEFENDANTS/APPELLANTS:
Robert Joseph Champagne, Jr.
Charlet Ann Champagne

John M.Veron
J. Rock Palermo, III
Michael Glenn Hodgkins
Turner D. Brumby
Veron, Bice, Palermo & Wilson, L.L.C.
Post Office Box 2125
Lake Charles, Louisiana 70602-2125
(337) 310-1600
COUNSEL FOR PLAINTIFFS/APPELLEES:
Peter Joseph Whitbeck
Marissa Jill Whitbeck

CONERY, Judge.

Robert and Charlet Champagne (Champagnes) appeal the trial court’s ruling

granting a motion for summary judgment in favor of Peter and Marissa Whitbeck

(Whitbecks). The trial court found the Champagnes in default of a July 2, 2012

Louisiana Residential Agreement to Buy and Sell (Purchase Agreement),1 wherein

the Champagnes agreed to purchase immovable property owned by the Whitbecks.

The trial court ordered the Champagnes to specifically perform under the terms

and provisions of the Purchase Agreement and pay the purchase price of

$450,000.00 to the Whitbecks. The trial court also found that the Whitbecks were

entitled to retain the $2,500.00 deposit given by the Champagnes and awarded

$17,700.00 in attorney fees plus $2,764.35 in costs to the Whitbecks, with judicial

interest from the date of judgment. The trial court denied the Whitbecks motion

for summary judgment seeking an award of broker or realtor fees. The Whitbecks

have answered the appeal and are seeking additional attorney fees and costs, an

award of broker or realtor fees, and attorney fees and costs in connection with the

appeal. For the following reasons, we affirm and award $2,500.00 in attorney fees

to the Whitbecks for work done on this appeal.

FACTS AND PROCEDURAL HISTORY

The Whitbecks’ home at 111 Seagull Lane, Big Lake, Louisiana 70607 (Big

Lake home) was listed on the market for sale. The Champagnes negotiated with

1
Louisiana Revised Statutes 37:1449.1, effective January 1, 2011, requires all licensed
real estate agents to use this form in connection with an offer to buy or sell residential
real estate. Louisiana Revised Statutes 37:1449.1 provides:

A licensee representing either the buyer or seller of residential real
property shall complete the purchase agreement form prescribed by the
Louisiana Real Estate Commission in making an offer to purchase or sell
residential real property. No person shall alter the purchase agreement
form; however, addendums or amendments to the form may be utilized.

the Whitbecks for the purchase of the Big Lake home and the parties subsequently

agreed to a cash sale price of $450,000.00. The initial offer was made to the

Whitbecks on June 30, 2012. The Whitbecks accepted the Champagnes’ offer in

writing by signing the Purchase Agreement on July 2, 2012.

Under the specific provisions of the Purchase Agreement, the Champagnes

had a fifteen day period to fully inspect the Big Lake home and were allowed to

conduct any inspections they deemed necessary. The inspection period began to

run on July 3, 2012, the day after the Whitbecks accepted the Champagnes’ cash

offer, and ended on July 17, 2012.2

During the fifteen day inspection period, the Champagnes admit they were

given free rein to inspect the Big Lake home and conducted at least three viewings

or inspections of the home. One of the inspections was conducted by an engineer

with Spell Structural Consulting, L.L.C., and included a structural review of both

the interior and exterior of the Big Lake home. The conclusion of the engineering

inspector was that the interior of the Big Lake home was “in good condition and no

structurally deficient issues were observed with interior finishes.”

2
Lines 141-150 of the Purchase Agreement provide:

Buyer shall have an inspection period of (15) calendar days, commencing
the first day after acceptance of this agreement wherein, BUYER may, at
BUYER’S expense, have any inspections made by experts or others of his
choosing. Such inspections may include, but are not limited to,
inspections for termites and other wood destroying insects, and/or damage
from same, molds, and fungi hazards, and analysis of synthetic stucco,
drywall, appliances, structures, foundations, roof, heating, cooling,
electrical, plumbing systems, utility and sewer availability and condition,
out-buildings, square footage, school district, flood zone classifications,
current zoning and/or subdivision restrictive covenants and any items
addressed in the SELLER’S Property Disclosure Document. All testing
shall be nondestructive testing. SELLER agrees to provide the utilities for
inspections and immediate access. If BUYER is not satisfied with the
condition of the Property the BUYER may choose one of the following
options within the inspection period[.]

2

In addition, the Whitbecks were required to disclose the following on the

Property Disclosure Form, “Has there been property damage related to the land or

the improvements thereon, including, but not limited to, fire, windstorm, flood, hail,

lighting, or other property damage?” The Whitbecks responded “yes[,]” and that

the repairs related to those damages, defects, and/or other conditions had been

made to the Big Lake home.

During the fifteen day inspection period, the Champagnes asked for

additional information about the repairs made, especially those made to the Big

Lake home after Hurricane Ike. The Whitbecks responded on July 10, 2012, with a

detailed listing and dates of when approximately ten repairs were made to the Big

Lake home. The Whitbecks’ response was sent to the Champagnes a week before

the end of the fifteen day inspection period.

Under the provisions of the Purchase Agreement, if the Champagnes found

any deficiencies in the Big Lake home within the fifteen day inspection period,

they could “elect in writing, to terminate the Agreement and declare the Agreement

null and void,” or “indicate in writing the deficiencies and desired remedies,”

giving the Whitbecks as the sellers seventy-two hours to respond in writing as to

their willingness to remedy those deficiencies.3 The Champagnes did not exercise

either of these options within the fifteen day inspection period.

Under the provisions of the Purchase Agreement, the Champagnes’ silence

was presumed acceptance once the fifteen day inspection period expired, as the

3
Lines 152-155 of the Purchase Agreement provide:

Option 1: BUYER may elect, in writing, to terminate the Agreement and
declare the Agreement null and void; or Option 2: BUYER may indicate
in writing the deficiencies and desired remedies and SELLER will within
seventy two (72) hours respond in writing as to SELLER’s willingness to
remedy those deficiencies (“SELLER’s Response”).

3

Purchase Agreement stated that “FAILURE TO MAKE INSPECTIONS OR TO

GIVE WRITTEN NOTICE OF DEFICIENCIES AND DESIRED REMEDIES TO

SELLER (OR SELLER’S DESIGNATED AGENT) AS SET FORTH IN LINES

141 THROUGH 155 WITHIN THE INSPECTION PERIOD SHALL BE

DEEMED AS ACCEPTANCE BY BUYER OF THE PROPERTY’S CURRENT

CONDITION.”

In addition, under the terms of the Purchase Agreement, the Champagnes

agreed to accept the Big Lake home in an “‘as is’ condition” and to “waive, relieve

and release” the Whitbecks from any further actions for redhibition and reduction

of the sale price. The Champagnes also acknowledged the sale of the Big Lake

home was to be made “without warranty of fitness for ordinary or particular use”

and that both parties agreed that this language was to be part of the Act of Sale.4

Based on the Champagnes’ silence and deemed acceptance of the condition

of the Big Lake home, the parties proceeded with the sale process. They mutually

agreed to close the sale of the Big Lake home on Monday, July 23, 2012. However,

on the morning of July 23, 2012, the Champagnes informally notified the

Whitbecks of their intention not to finalize the sale. The Champagnes indicated

they had received information from a third-party that the Big Lake home had a

“mold and mildew issue.” This informal notification by the Champagnes of a
4
Lines 189-195 of the Purchase Agreement provide:

B. SALE “AS IS” WITHOUT WARRANTIES: SELLER and BUYER
hereby acknowledge and recognize that the Property being sold and
purchased is to be transferred in “as is” condition and further BUYER
does hereby waive, relieve and release SELLER from any claims or causes
of action for redhibition pursuant to Louisiana Civil Code Article 2520, et
seq. and Article 2541, et seq. or for reduction of Sale Price pursuant to
Louisiana Civil Code Article 2541, et seq. Additionally, BUYER
acknowledges that this sale is made without warranty of fitness for
ordinary or particular use pursuant to Louisiana Civil Code Article 2524.
SELLER and BUYER agree that this clause shall be made a part of the
Act of Sale.

4

potential “mold and mildew issue” was the first time the Whitbecks were notified

that the Champagnes had any reservations about either the condition of the Big

Lake home or finalizing the sale of the property.

The next day, July 24, 2012, the Champagnes formally notified the

Whitbecks of their intention not to purchase the Big Lake home. The Champagnes

gave as their only reason that they had elected “not to move forward with the

purchase of the above mentioned property on the basis of non disclosure by the

sellers.” They further requested “release of the escrowed funds of $2,500.00.” In

response, and in order to dispel the third-party rumor of mold and mildew issues,

the Whitbecks gave the Champagnes complete freedom to take whatever steps they

deemed necessary to satisfy themselves that the Big Lake home was free from

mold and mildew. This offer by the Whitbecks to the Champagnes was confirmed

by Mr. Champagne under oath. He testified that his own real estate agent, Mrs.

Rhonda Gaspard, informed him that the Whitbecks were willing to allow the

Champagnes to conduct all inspections necessary to confirm that mold was not

present in the Big Lake home. In an effort to break the impasse between the

parties and to impress on the Champagnes the seriousness of their actions in

refusing to complete the sale as per the Purchase Agreement, Mrs. Gaspard, in a

July 23, 2012 correspondence, urged the Champagnes to “investigate further” in

order to determine if there was a real basis for the third-party mold rumor. She

also suggested that the Champagnes have someone check with a moisture meter for

any moisture in the walls or tear out the sheetrock in the suspected area.

Mrs. Gaspard also told the Champagnes that her broker, Tim Flavin, was of

the opinion that the Champagnes were contractually bound to close on the Big

Lake home unless they could prove there was a mold problem and that it had been

5

covered up by the Whitbecks. Mrs. Gaspard further informed the Champagnes that

the Whitbecks intended to seek specific performance of the Purchase Agreement.

She then suggested, once again, that the sheetrock be torn out in the area in

question and that an expert be called to confirm the absence or presence of mold or

any structural defects.

The Champagnes never took advantage of the Whitbecks’ offers to conduct

any and all inspections necessary to satisfy themselves that the Big Lake home was

mold free. It is undisputed that the Champagnes never hired anyone to conduct a

mold assessment of the Big Lake home. Due to the Champagnes failure to address

the mold rumor, and in an attempt to resurrect the sale, the Whitbecks hired their

own environmental professional, Booth Environmental Services, LLC (Booth).

Booth performed a “Moisture and Mold Assessment Sampling” and a “MOLD

ASSESSMENT REPORT,” dated August 6, 2012. The report, which was

introduced into evidence, contained two opinions. In the first Booth opinion, the

Booth inspector states, “according to the air samples, the indoor area is not

considered to be elevated at the time of the inspection.” The Booth opinion also

states, “there was also no visible evidence observed by the Booth Environmental

staff to suggest that an issue existed with elevated mold at the time of inspection.”

The Whitbecks sent a copy of the Booth report to the Champagnes on

August 8, 2012, and insisted that they finalize the sale. The Champagnes

maintained their position and refused to close the sale of the Big Lake home,

despite taking no steps to provide evidentiary support for their contention that the

Whitbecks failure to disclose a mildew and mold problem in the Big Lake home

was a breach of the Purchase Agreement.

6

Ms. Rhonda Gaspard, the Champagnes’ realtor, requested that the

Champagnes obtain an affidavit from Mr. Stanley Schiele, a local contractor, and

the supposed “third-party source” of the mold rumor at the Big Lake home. The

affidavit was not forthcoming until two months after the initial July 23, 2012

closing date for the sale of the property. Mr. Schiele’s affidavit failed to support

the Champagnes’ contention that the Whitbecks had failed to disclose a mold

problem in the Big Lake home and only stated there was “potential for mold.” Mr.

Schiele also testified via deposition that despite working as a contractor in the area

for a number of years, he “never encountered any black mold in the Big Lake area.”

The Whitbecks filed suit against the Champagnes on September 5, 2012,

seeking specific performance 5 of the Purchase Agreement, retention of the

Champagnes’ deposit, both attorney and broker fees, and costs.6 The Whitbecks

claimed that the Champagnes had breached the Purchase Agreement by failing to

complete the sale on the Big Lake home. The Champagnes reconvened seeking

the return of their deposit, along with costs and attorney fees.

At the close of discovery, during which the depositions of the parties, the

realtors and Mr. Schiele, the source of the third-party mold rumor, were taken, the

5
Lines 228-232 of the Purchase Agreement provide:

DEFAULT OF AGREEMENT BY BUYER: In the event of any other
default of this agreement by BUYER except as set forth in lines 103
through 122, SELLER shall have at SELLER’s option the right to declare
this Agreement null and void with no further demand, or to demand and
sue for any of the following:
1) Termination of this Agreement; 2) Specific Performance; 3)
Termination of this Agreement and an amount equal to 10% of the Sale
Price as stipulated damages.
6
Lines 234-236 of the Purchase Agreement provide, “Further, SELLER shall be entitled
to retain the Deposit. The prevailing party to any litigation brought to enforce any
provision of this Agreement shall be awarded their attorney fees and costs. The BUYER
may also be liable for Broker fees.”

7

Whitbecks filed a motion for summary judgment. A hearing on the Whitbecks’

motion was held on July 24, 2013. After considering all the depositions, pleadings,

and affidavits in support of and in opposition to the motion, the trial court granted

the Whitbecks’ motion for oral reasons assigned. The trial court ruled that the

Whitbecks were entitled to specific performance of the Purchase Agreement and

awarded judgment in the amount of $450,000.00 to the Whitbecks in accordance

with the contract. The trial court also allowed the Whitbecks to retain the

$2,500.00 deposit without credit toward the sales price, plus costs, and indicated it

would make an award of attorney fees. The court ordered briefing and set an

additional hearing for September 4, 2013, on both the attorney and broker fees

issue.

Counsel for the Whitbecks submitted a detailed attorney fees claim for $30,

850.00. After receipt of post-motion briefing, the trial court held the September 4,

2013 hearing as scheduled. On September 30, 2013, the trial court issued its

written ruling and awarded the Whitbecks $17,700.00 in attorney fees,

approximately half the amount claimed, plus costs of $2,764.35. The trial court

also denied the Whitbecks’ request for broker fees. A final judgment was signed

on October 29, 2013, from which the Champagnes have filed a timely suspensive

appeal. The Whitbecks have answered the appeal and seek an increase of the

attorney fees award to $30,850.00, the original amount claimed, an award of

broker’s fees, plus attorney fees and costs for the appeal.

ASSIGNMENTS OF ERROR

The Champagnes argue the trial court erred by granting the Whitbecks’

motion for summary judgment and ordering specific performance of the Purchase

Agreement.

8

In their answer to appeal, the Whitbecks argue that the trial court erred in not

granting the total amount of attorney fees sought and in failing to award the

Whitbecks broker or realtor fees. The Whitbecks seek an additional award of

attorney fees and costs for the appeal.

LAW AND DISCUSSION

Standard of Review

Summary judgments are reviewed de novo, applying the same standard to

the matter as that applied by the trial court. Smith v. Our Lady of the Lake Hosp.,

Inc., 93-2512 (La. 7/5/94), 639 So.2d 730. Summary judgment is favored by law

and provides a vehicle by which the just, speedy, and inexpensive determination of

an action may be achieved. La.Code Civ.P. art. 966(A)(2). The trial court is

required to render summary judgment “if the pleadings, depositions, answers to

interrogatories, and admissions, together with the affidavits, if any, admitted for

purposes of the motion for summary judgment, show that there is no genuine issue

as to material fact, and that mover is entitled to judgment as a matter of law.”

La.Code Civ.P. art. 966(B)(2). In this case, all documentation in support of and in

opposition to the Whitbecks motion for summary judgment was properly admitted

into evidence at the July 24, 2013 hearing. Though heard as a motion for summary

judgment, it appears that the parties in effect introduced the entirety of the

evidence by way of depositions, affidavits, and exhibits, and the Court, after

considering all the evidence submitted at the hearing, made a ruling that no

material facts remained for trial.

In 1997, the legislature enacted La.Code Civ.P. art. 966(C)(2), which

clarified the burden of proof for a summary judgment proceeding. The initial

burden of proof remains with the mover to show that no genuine issue of material

9

fact exists. If the mover has made a prima facie showing that the motion should be

granted, the burden shifts to the non-moving party to present evidence

demonstrating that a genuine material factual issue remains. Id. “[T]he failure of

the non-moving party to produce evidence of a material factual dispute mandates

the granting of the motion.” Hutchinson v. Knights of Columbus, Council No.

5747, 03-1533, p. 7 (La. 2/20/04), 866 So.2d 228, 233.

When a motion for summary judgment is made and supported, the adverse

party may not rest on the allegations or denials of his pleadings, but must set forth

specific facts showing that there is a genuine issue for trial. La.Code Civ.P. art.

967(B). “A fact is ‘material’ when its existence or nonexistence may be essential

to [a] plaintiff’s cause of action under the applicable theory of recovery. Smith,

639 So.2d at 751. “[F]acts are material if they potentially insure or preclude

recovery, affect a litigant’s ultimate success, or determine the outcome of the legal

dispute.” Id. (quoting S. La. Bank v. Williams, 591 So.2d 375, 377 (La.App. 3 Cir.

1991), writ denied, 596 So.2d 211 (La.1992)).

In determining whether a fact is material, we must consider the substantive

law governing the litigation. Davenport v. Albertson’s, Inc., 00-685 (La.App. 3 Cir.

12/6/00), 774 So.2d 340, writ denied, 01-73 (La. 3/23/01), 788 So.2d 427. In this

case, the substantive law of contracts is applicable.

Questions of contractual interpretation are questions of law, which are

subject to a de novo standard of review. Mitchell v. Patterson Ins. Co., 00-612

(La.App. 3 Cir. 12/6/00), 774 So.2d 366. Contracts have the force of law between

the parties, and the courts are bound to interpret them according to the common

intent of the parties. La.Civ.Code arts. 1983 & 2045. If the words of the contract

are clear, unambiguous, and lead to no absurd consequences, the court need not

10

look beyond the contract language to determine the true intent of the parties.

La.Civ.Code art. 2046. “Each provision in a contract must be interpreted in light

of the other provisions so that each is given the meaning suggested by the contract

as a whole.” La.Civ.Code art. 2050. Whether or not a contract is ambiguous is a

question of law. La. Ins. Guar. Ass’n. v. Interstate Fire & Cas. Co., 93-911

(La.1/14/94), 630 So.2d 759.

Terms of the Purchase Agreement

If the terms of the Purchase Agreement at issue are “clear and explicit and

lead to no absurd consequences, no further interpretation may be made in search of

the parties’ intent. La.Civ.Code art. 2046.” Gonsoulin v. Pontiff, 11-177, p. 5

(La.App. 3 Cir. 10/5/11), 74 So.3d 809. In this case, the Purchase Agreement at

issue is the standard form required by the Louisiana Real Estate Commission in

connection with the sale and or purchase of a residential property. Thus, the trial

court correctly found in its reasons for granting the Whitbecks’ motion for

summary judgment that the contract was clear and unambiguous and therefore the

law between the parties:

The Court finds that the contract in this matter is clear and
unambiguous. It’s the law between the parties. The depositions
confirm that the parties understood the contents of the contract. And
it’s clear from the depositions and the contract that the Champagnes
breached their duty under the contract.

So the Court’s going to grant the motion for summary judgment
in favor of the plaintiffs; order specific performance; order the sellers
retain the deposit; award attorney fees to be determined at a hearing,
at a date and time set today. And the contract says, “May order broker
fees.” I will determine at that hearing whether broker fees will be
awarded.

The Champagnes argue that there are genuine issues of material fact that

preclude summary judgment in this case. However, in light of the depositions and

11

exhibits submitted by the Whitbecks and the clear and unambiguous wording of

the Purchase Agreement, we cannot agree. When a motion for summary judgment

is made and supported, the adverse party may not rest on the allegations or denials

of his pleadings, but must set forth specific facts showing that there is a genuine

issue for trial. La.Code Civ.P. art. 967(B).

The Champagnes failed to produce any expert testimony to support their

claim that the Whitbecks had failed to disclose the presence of mold or any

structural defect. Mr. Champagne testified in his deposition, after a discussion

about the mold inspection commissioned by the Whitbecks, that they had “no

scientific evidence to refute” the conclusions of Booth that there was no mold

present in the Big lake home.

Neither the affidavit nor the deposition testimony of Mr. Schiele supports

the Champagnes’ claim that the Whitbecks failed to disclose the presence of mold.

Mr. Schiele testified under oath that water spots he observed on a ceiling in one of

the rooms only have the “potential for mold” and that he had never encountered

“black mold” in the Big Lake area.

The Champagnes also argue the Whitbecks failed to disclose that a window

had been replaced in the same room which had water spots on the ceiling. This

issue was thoroughly discussed by Mr. Schiele in his deposition as a “potential”

source of mold. However, Mr. Schiele also confirmed that he never saw mold in

the Big Lake home.

The Property Condition Disclosure Form was not a part of the record, but we

12

allowed the parties to supplement the record with the form and have reviewed it.7

The alleged undisclosed repairs were thoroughly discussed in the deposition of Mr.

Champagne wherein he admitted that he had no evidentiary support that any

alleged undisclosed repairs by the Whitbecks met the definition of a “Known

defect” on the Property Disclosure Form. A “Known defect” is defined in the

Property Disclosure Form, as “a condition found within the property that was

actually known by the seller and that results in one or all of the following.” The

“Known defect” either presents a “substantial adverse effect on the value of the

property,” “significantly impairs the health or safety of any future occupants[,]” or

“significantly shortens the expected normal life of the premises” if the repairs are

not made.

Based on the uncontradicted evidence submitted at the motion for summary

judgment, and the clear terms of the Purchase Agreement, we find there is no

genuine issue of material fact to defeat the Whitbecks’ motion for summary

judgment.

The Champagnes were given carte blanche to inspect the house by the

Whitbecks, who asserted all through this process that they had nothing to hide.

The Champagnes were free to take any measures necessary to assure there was no

mold or structural defect present in the Big Lake house, including tearing out the

sheetrock in the bedroom in question, as recommended by their realtor. The

Champagnes failed to do so.

The Champagnes have failed to present any documentary evidence or

testimony to create a genuine issue of material fact sufficient to defeat the motion

7
The Property Disclosure Form is now required by the Louisiana Real Estate
Commission as provided by La.R.S. 9:3196, et seq. The form used was in compliance with the
statute.

13

for summary judgment sought by the Whitbecks. We affirm the trial court’s ruling

granting summary judgment to the Whitbecks for the Champagnes breach of the

Purchase Agreement.

Stipulated Damages in the Purchase Agreement

The Champagnes argue that the trial court erred in granting specific

performance in favor of the Whitbecks and ordering them to execute the Purchase

Agreement for the cash price of $450,000.00. The Purchase Agreement clearly

states that “specific performance” is one of the three options available to the Seller

when the Buyer breaches the Purchase Agreement. The Purchase Agreement

states that the seller may “demand and sue for any of the following: 1) Termination

of this Agreement; 2) Specific Performance; 3) Termination of this Agreement and

an amount equal to 10% of the Sale Price as stipulated damages.”

The Champagnes argue that the trial court is required to choose the option to

be exercised in the event of a breach of the Purchase Agreement. However, the

clear language of the Purchase Agreement provides, “SELLER shall have at

SELLER’s option the right” to choose the remedy for the Champagnes’ breach of

the Purchase Agreement. Documentation presented in support of the motion for

summary judgment clearly provides that from the date of the closing when the

Champagnes refused to go through with the sale, the Champagnes were on notice

from both their broker, Tim Flavin, and their realtor, Rhonda Gaspard, that the

Whitbecks intended to seek specific performance of the Purchase Agreement

should the Champagnes choose not to perform.

Louisiana Civil Code Article 1986 provides:

Upon an obligor’s failure to perform an obligation to deliver a thing or
not to do an act, or to execute an instrument, the court shall grant
specific performance plus damages for delay if the obligee so

14

demands. If specific performance is impracticable, the court may
allow damages to the obligee.

Upon a failure to perform an obligation that has another object, such
as an obligation to do, the granting of specific performance is at the
discretion of the court.

(Emphasis added.)

In Charter Sch. of Pine Grove v. St. Helena Parish Sch. Bd., 07-2238, p.14

(La.App. 1 Cir. 2/19/09), 9 So.3d 209, 222, our sister circuit succinctly discussed

La.Civ.Code art. 1986 and the jurisprudence applicable to a breach of a contract

that contains a provision for specific performance:

Upon an obligor’s failure to perform an obligation to do, the
granting of specific performance is at the discretion of the court. See
LSA–C.C. art.1986. Under Louisiana’s civil law system, specific
performance is the preferred remedy for breach of contract. An
obligee enjoys the right to demand, insofar as is practicable, the
specific performance of the obligation. Lombardo v. Deshotel, 94–
1172 (La.11/30/94), 647 So.2d 1086, 1090; see LSA–C.C. art.1986.
An obligee has a right to specific performance for breach of contract
except when it is impossible, greatly disproportionate in cost to the
actual damage caused, no longer in the creditor’s interest, or of
substantial negative effect upon the interests of third parties. J.
Weingarten, Inc. v. Northgate Mall, Inc., 404 So.2d 896, 901
(La.1981).

The Champagnes argue that the trial court erred in enforcing the Whitbecks’

claim for specific performance for the agreed upon sum of $450,000.00 cash, as it

would be “impracticable” to force the Champagnes to acquire ownership of the Big

Lake home. After the purchase, if the alleged defect of mold was discovered, the

discovery would lead to another lawsuit, an action in redhibition, pursuant to

La.Civ.Code art. 2520.

However, under the explicit terms of the Purchase Agreement, the

Champagnes agreed, “the Property being sold and purchased is to be transferred in

‘as is’ condition and further BUYER does hereby waive, relieve and release

15

SELLER from any claims or causes of action for redhibition pursuant to Louisiana

Civil Code Article 2520, et seq. and Article 2541, et seq. or for reduction of Sale

Price pursuant to Louisiana Code Article 2541, et seq.” They also agreed, “[t]hat

this sale is made without warranty of fitness for ordinary or particular use

pursuant to the Louisiana Civil Code Article 2524. SELLER and BUYER agree

that this clause shall be made a part of the Act of Sale.”

In Ross v. Premier Imports, 96-2577 (La.App. 1 Cir. 11/7/97), 704 So.2d 17,

21, writ denied, 97-3035 (La. 2/13/98), 709 So.2d 750, the first circuit provided

that a seller may “limit his obligations as seller, providing he does so clearly and

unambiguously.” In Keaty v. Moss Motors, Inc., 93-1452 (La.App. 3 Cir. 6/1/94),

638 So.2d 684, 687, writ denied, 94-2211 (La. 11/11/94), 644 So.2d 399, a panel

of this court specified that for the conditions necessary for the waiver to be

effective, the contractual waiver must, “(1) be written in clear and unambiguous

terms; (2) be contained in the contract; and, (3) either be brought to the attention of

the buyer or explained to him.”8

The trial court specifically found that the contract was “clear and

unambiguous” and that it was “the law between the parties.” In addition, the trial

court found that “the depositions confirm the parties understood the contents of the

contract.” Based on the trial court’s findings that there was no genuine issue of

material fact, and our review of the Purchase Agreement and the record, we find

that the uncontradicted facts support the conclusion that the provisions of the

contract are enforceable against the Champagnes and present no bar to the remedy

of specific performance granted by the trial court. This conclusion is further

8
Louisiana Civil Code Article 2548, amended by La. Acts 1993, No.841 § 1, codified the
jurisprudential requirements and became effective January 1, 1995.

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supported by the Champagnes’ failure to produce any evidence to support their

contention that the Big Lake home contained mold or any defect that would qualify

as a basis for refusal to honor the Purchase Agreement.

Louisiana Civil Code Article 2005 allows parties to “stipulate the damages

to be recovered in case of nonperformance, defective performance, or delay in

performance of an obligation.” Further, “[T]hat stipulation gives rise to a

secondary obligation for the purpose of enforcing the principal one.” Louisiana

Civil Code Article 2012 also instructs, “Stipulated damages may not be modified

by the court unless they are so manifestly unreasonable as to be contrary to public

policy.” Neither party has argued that the stipulated damages are “so manifestly

unreasonable as to be contrary to public policy.” Id.

The parties agreed in the Purchase Agreement to a cash price for the Big

Lake home of $450,000.00. The trial court granted specific performance to the

Whitbecks based on the stipulated damage provisions in the Purchase Agreement

and ordered the Champagnes to perform according its terms, finding the Purchase

Agreement was “the law between the parties.”

In Stumpf v. Richardson, 99-415, p. 5 (La.App. 5 Cir. 11/30/99), 748 So.2d

1225, 1227-28, the trial court found that the contract included a clause for specific

performance, that the terms of the contract had been met, and thus granted specific

performance to the sellers and ordered the buyer to pay the agreed to price of

$525,000.00. The buyer refused to complete the sale for the negotiated price of

$525,000.00, the value of the property in the lender’s appraisal, after having the

property appraised at $378,000.00 in her separate appraisal. The court in Stumpf

based its ruling on City of Kenner v. Jumonville, 97-125 (La.App. 5 Cir. 8/27/97),

701 So.2d 223, 228, writ denied, 97-2890 (La.1/30/98), 709 So.2d 718, cert.

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denied, 524 U.S. 953, 118 S.Ct.2371 (1998), and stated, “Courts ‘cannot

undermine a contract simply because it was a bad deal, or is believed to be, for one

of the parties.’”

The same principle applies in this case. We agree with the trial court that

specific performance was properly granted as a remedy to the Whitbecks for the

Champagnes’ failure to perform under the clear terms of the Purchase Agreement.

Duty to Mitigate

The Champagnes argue that the Whitbecks had a duty to mitigate the

stipulated damages by continuing to market their Big Lake home to try and find

another buyer for the property. Louisiana Civil Code Article 2002 provides, “An

obligee must make reasonable efforts to mitigate the damage caused by the

obligor’s failure to perform. When the obligee fails to make these efforts, the

obligor may demand that the damages be accordingly reduced.” In Lombardo v.

Deshotel, 94-1172 (La. 11/30/94), 647 So.2d 1086, the supreme court discussed

the conflict between La.Civ.Code art. 2002 and stipulated damage provisions in a

contract. In Lombardo, the supreme court held that La.Civ.Code art. 2002 was not

applicable and there was no duty on the part of the obligee to mitigate his damages

when stipulated damages were part of the contractual obligation of the obligor:

The obligee can recover no more nor less than the stipulated damages
regardless of the amount of damage or the consequences caused by
the obligee’s neglect. Consequently, because the seller, Lombardo,
could not suffer a reduction of her stipulated damages and therefore
owed no duty to mitigate her damage to the purchaser.

Lombardo, 647 So.2d at 1092 (emphasis added).

We agree that the trial court correctly interpreted the terms of the Purchase

Agreement providing for specific performance by requiring the Champagnes to

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perform under the terms of the Purchase Agreement and purchase the Big Lake

home for the agreed to cash price of $450,000.00.

Remaining Damages Awarded by the Trial Court

The Purchase Agreement also provides, “Further, SELLER shall be entitled

to retain the Deposit. The prevailing party to any litigation brought to enforce any

provision of this Agreement shall be awarded their attorney fees and costs. The

BUYER may also be liable for Broker fees.”

The trial court, under the provisions of the Purchase Agreement, correctly

awarded the $2,500.00 deposit to the Whitbecks without a reduction of the

purchase price of the Big Lake home. Also, under the terms of the Purchase

Agreement, the trial court awarded the Whitbecks their requested costs of

$2,764.35. The Champagnes did not brief either of these issues to this court on

appeal and therefore pursuant to Uniform Rules—Courts of Appeal, Rule 2–12.4,

these issues are considered abandoned.

The Whitbecks’ Answer to Appeal

The Whitbecks have answered the appeal and seek the following, “(i) a

modification of the trial court judgment to increase the award of attorneys’ fees, (ii)

a modification and/or reversal of the judgment to grant an award of broker fees,

and (iii) an award of attorneys’ fees and costs incurred in connection with this

appeal.”

Attorney Fees

After granting the Whitbecks’ motion for summary judgment, the trial court

deferred ruling on the attorney fee and broker’s fee issues and requested that

counsel submit a post hearing memoranda on these issues. The trial court then

heard oral argument on these issues at a hearing on September 4, 2013. In support

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of their request for attorney fees and costs, Turner D. Brumley, counsel for the

Whitbecks, had submitted a memorandum and a sworn affidavit with

documentation supporting one hundred and eighteen hours of work on the

Whitbecks’ lawsuit for a total of $30,850.00 in attorney fees and $2,764.35 in costs.

In their opposition memorandum, counsel for the Champagnes claimed that

the amount of attorney fees “requested by the Whitbecks for attorney fees is about

twice as much as would be appropriate under the circumstances revealed by the

record of this proceeding.” Counsel for the Champagnes did not challenge the

hourly rate of the Whitbecks’ attorneys, but argued in its memorandum, without

any documentation, that the Whitbecks’ attorneys should have only spent half as

much time on the case as claimed.

In response, at oral argument, counsel for the Whitbecks asked that the

Champagnes’ attorneys submit their bills in-camera and thus allow the trial court

to compare the attorney fees for both parties to see if the Whitbecks’ attorneys

should have only spent fifty hours on the case. The trial court then allowed the

attorneys for the Champagnes ten days to provide the court with “a detailed

accounting of their attorney fees in this matter,” for an in-camera inspection.

After the requested submission from counsel for the Champagnes, the trial

court issued a ruling on September 30, 2013. The Champagnes’ attorney fees

accounting is not in the record before us and cannot be considered, as provided in

La.Code Civ.P. art. 2164. The trial court stated as its basis for reducing by almost

half the attorney fees requested by the Whitbecks, “After review of the attorney

fees requested and incurred by the parties in this case and the jurisprudence on

reasonable attorney fees, the Court will award $17,700 as a reasonable attorney fee

to the plaintiffs; expenses incurred by the plaintiffs in the amount of $2,764.35.”

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In Covington v. McNeese State Univ., 12-2182, p. 6 (La. 5/7/13), 118 So.3d

343, 348, the supreme court held, “The appellate court reviews an award of

attorney’s fees for an abuse of discretion. The district court’s factual

determinations will not be set aside absent manifest error. Stobart v. State, Dep’t

of Trans. and Dev., 617 So.2d 880, 882 n. 2 (La.1993).”

The supreme court in State, Department of Transportation and Development

v. Williamson, 597 So.2d 439, 441-42 (La.1992), outlined the factors that must be

considered by a court in reviewing an award of attorney fees:

Factors to be taken into consideration in determining the
reasonableness of attorney fees include: (1) the ultimate result
obtained; (2) the responsibility incurred; (3) the importance of the
litigation; (4) amount of money involved; (5) extent and character of
the work performed; (6) legal knowledge, attainment, and skill of the
attorneys; (7) number of appearances made; (8) intricacies of the facts
involved; (9) diligence and skill of counsel; and (10) the court’s own
knowledge.

The trial court was in the best position to determine the fairness of the award

of attorney fees. After reviewing the Champagnes’ documentation, which is not in

the record before us, the trial court exercised its much discretion and awarded

attorney fees of $17,700.00 to the Whitbecks. We cannot say that the amount so

awarded was an abuse of the trial court’s discretion.

Broker Fees

The Purchase Agreement states, “The BUYER may also be liable for Broker

fees.” The Whitbecks seek $26,000.00 in broker/realtor fees based on the sale

price of the Big Lake home in the Purchase Agreement, the delay occasioned by

the Champagnes’ breach of the terms of the Purchase Agreement, and the necessity

of filing this litigation.

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The trial court declined to award broker’s fees and stated in its ruling

“Finally, I will deny the plaintiffs’ request for broker fees in this matter.” The

Purchase Agreement, which controls, allows the trial court the discretion to award

broker’s fees. We cannot say that the trial court abused its considerable discretion.

Attorney Fees on Appeal

The Champagnes argue that the Whitbecks are not entitled to attorney fees

for work on the appeal. However, this circuit specifically held in McFadden v.

Import One, Inc., 10-952, p. 16 (La.App. 3 Cir. 2/9/11), 56 So.3d 1212, 1223:

When an award for attorney’s fees is granted at a lower court
level, the recipient of those fees is entitled to additional fees for work
done on appeal. This keeps the appellate judgment consistent with the
underlying judgment. Wilczewski v. Brookshire Grocery Store, 08–
718, p. 18 (La.App. 3 Cir. 1/28/09), 2 So.3d 1214, 1226, writ denied,
09–456 (La.4/13/09), 5 So.3d 170.

Based on the work performed by counsel for the Whitbecks on appeal, we

find that $2,500.00 is a reasonable award. We therefore grant the request of the

Whitbecks for attorney fees on appeal and award attorney fees in the amount of

$2,500.00, plus all costs of the appeal.

CONCLUSION

For the foregoing reasons, we affirm the trial court’s judgment in favor of

Peter and Marissa Whitbeck and against Robert and Charlet Champagne. We find

the Champagnes in breach of the June 30, 2012 Purchase Agreement and order the

Champagnes to specifically perform by paying $450,000.00 in cash under the

terms and provisions of the Purchase Agreement. We affirm the trial court’s

judgment allowing the Whitbecks to retain the $2,500.00 deposit, without an offset

against the sales price, all with legal interest from the date of judgment, plus the

award of costs to the Whitbecks in the amount of $2,764.35. We affirm the trial

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court’s award of $17,700.00 in attorney fees and we award the Whitbecks

$2,500.00 as attorney fees for work on the appeal. We assess all costs of this

appeal to Robert and Charlet Champagne.

AFFIRMED.

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