Gbb Properties Two, LLC v. Stirling Properties, LLC

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

18-158

GBB PROPERTIES TWO, LLC, ET AL.

VERSUS

STIRLING PROPERTIES, LLC, ET AL.

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. C-20162400
HONORABLE EDWARD D. RUBIN, DISTRICT JUDGE

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JOHN D. SAUNDERS
JUDGE

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Court composed of Sylvia R. Cooks, John D. Saunders, and Elizabeth A. Pickett,
Judges.

REVERSED AND REMANDED.

Brent B. Barriere
Skylar Rosenbloom
Rebecca Sha
Fishman Haygood, L.L.P.
201 St. Charles Ave., Suite 4600
New Orleans, LA 70170
(504) 586-5252
COUNSEL FOR DEFENDANT/APPELLEE:
Stirling Properties, LLC
Ambassador Town Center JV, LLC
CBL & Associates Management, Inc.
Four Magnolias, LLC
Ambassador Infrastructure, LLC

Rickey W. Miniex
Clyde R. Simien
Katrena A. Porter
Simien & Miniex, APLC
104 Rue Iberville
Lafayette, LA 70508
(337) 269-0222
COUNSEL FOR DEFENDANT/APPELLEE:
Stirling Properties, LLC
Ambassador Town Center JV, LLC
CBL & Associates Management, Inc.
Four Magnolias, LLC
Ambassador Infrastructure, LLC

Patrick S. McGoey
Andrea V. Timpa
Ellie T. Schilling
Schonekas, Evans, McGoey & McEachin, LLC
909 Poydras Street, Suite 1600
New Orleans, LA 70112
(504) 680-6050
COUNSEL FOR PLAINTIFF/APPELLANT:
GBB Properties Two, LLC
DBR Properties, LLC

SAUNDERS, Judge.

This is a case involving the development of real property as a major mixed-

use project. Appellants asserted various claims arising under a purchase agreement

and a payment-in-lieu-of-taxes agreement relating to the development of

infrastructure improvements to the “master tract” of the project.

The trial court granted a partial summary judgment dismissing Appellants’

claims relating to the purchase agreement. Appellants appeal the dismissal of those

claims.

FACTUAL AND PROCEDURAL HISTORY:

This lawsuit arises out of a commercial development known as Ambassador

Town Center. The development spans 125 plus acres and includes a Costco, Dicks

Sporting Goods, Lazyboy and other retailers.

In 2013, GBB Properties Two, LLC and DBR Properties, LLC (Collectively

“Appellants”) agreed to sell a portion of the 125 acre “master tract” to Four

Magnolias, LLC. Prior to the Act of Sale, a Purchase Agreement was entered into

by the parties which obligated Four Magnolias, LLC to buy at least 41 acres of the

125 acre “master tract.” It also obligated Four Magnolias to pay for the construction

of infrastructure improvements outside of the property it was to acquire, i.e., the

remaining property in the “master tract.” Section 2.B of the Purchase Agreement

provided that if Four Magnolias, LLC did not incur a certain amount of costs to make

the infrastructure improvements, it would owe Appellants a rebate. As such, under

Section 2.B, Four Magnolias, LLC is required to account for the possibility that it

would owe a rebate to Appellants once construction was completed. Thereafter,

Four Magnolias, LLC assigned its interest in the land to Ambassador Town Center

JV, LLC.

An Act of Sale was entered into between Appellants and Ambassador Town

Center JV. The Act of Sale did not address these off-site infrastructure costs or the

rebate.

Ambassador Infrastructure, LLC completed all of the public infrastructure on

the land acquired in the Act of Sale. No such public infrastructure was done to the

remaining land in the “master tract.”

Appellants filed suit against Ambassador Infrastructure, LLC, Four

Magnolias, LLC, and Ambassador Town Center JV (Collectively “Appellees”).

Appellants asserted in its suit, inter alia, claims involving obligations stemming

from the Purchase Agreement that were not included in the Act of Sale. Appellees

filed a Motion for Partial Summary Judgment to dismiss those claims.

After a hearing, the trial court granted Appellees’ Motion for Partial Summary

Judgment. It is from this judgment that Appellants present two assignments of error.

ASSIGNMENTS OF ERROR:

1. The trial court erred in granting Defendants’ Motion for Partial
Summary Judgment dismissing not only Plaintiffs’ breach of the
Purchase Agreement claim but also their unjust enrichment claim.

2. The trial court erred in failing to defer ruling on the Defendants’
Motion for Partial Summary Judgment until adequate discovery was
completed.

ASSIGNMENT OF ERROR NUMBER ONE:

In their first issue assignment of error, Appellants contends that the trial court

erred in granting Defendants’ motion for partial summary judgment dismissing their

breach of the purchase agreement and unjust enrichment claims. We find merit to

this assignment of error.

A summary judgment is reviewed using the de novo standard of review by

focusing on the identical criteria that govern the trial court’s consideration of

whether summary judgment is appropriate. Samaha v. Rau, 07-1726 (La. 2/26/08),
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977 So.2d 880. As such, we are tasked to make a determination whether “the motion,

memorandum, and supporting documents show that there is no genuine issue as to

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

Civ.P. art. 966(A)(3).

In adjudicating a motion for summary judgment, a court cannot “consider the

merits, make credibility determinations, evaluate testimony[,] or weigh evidence.”

Prop. Ins. Ass’n of La. v. Theriot, 09-1152, p. 3 (La. 3/16/10), 31 So.3d 1012, 1014

(quoting Suire v. Lafayette City–Parish Consol. Gov’t, 04-1459, (La. 4/12/05), 907

So.2d 37). Moreover, although “summary judgments are now favored, factual

inferences reasonably drawn from the evidence must be construed in favor of the

party opposing the motion, and all doubt must be resolved in the opponent’s favor.”

Willis v. Medders, 00-2507, p. 2 (La. 12/8/00), 775 So.2d 1049, 1050.

“If the words of a contract are clear, explicit, and lead to no absurd results, it

must be interpreted by reference to the ‘four corners’ of the document and no further

interpretation can occur in search of the parties’ intent.” Hebert v. Ins. Center, Inc.,

97-298, p. 4 (La.App. 3 Cir. 1/7/98), 706 So.2d 1007, 1011, writ denied, 98-353

(La.3/27/98), 716 So.2d 888; La.Civ.Code art. 2046. Louisiana Civil Code Article

1848 states, “[t]estimonial or other evidence may not be admitted to negate or vary

the contents of an authentic act or an act under private signature.” Comment (a) of

La.Civ.Code art. 1848 iterates that Article 1848 “incorporates exceptions recognized

by the Louisiana jurisprudence.”

One such exception is that of the prior or contemporaneous agreement

between the parties.

Evidence is also admissible of a valid prior or contemporaneous
agreement of a collateral nature between the parties about which the
final written contract is silent. This rule of admissibility is important in
real estate transactions. For example, an act of sale, the formal act of
transfer of the property, may not contain each and every stipulation
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between the parties concerning the real estate, either intentionally or
through oversight. However, a prior or contemporaneous collateral
agreement regarding the real estate is nonetheless effective provided
that the agreement is not at variance with the terms of the act of sale.

1 Peter S. Title, LOUISIANA REAL ESTATE TRANSACTIONS, § 7:46 (2d ed. 2016).

In this case, Appellees filed the motion for summary judgment. On appeal,

they argue that because the Act of Sale does not include certain obligations set forth

in the Purchase Agreement, those obligations are not enforcable between the parties.

Appellees cite La.Civ. Code art. 1835 which states, “[a]n authentic act constitutes

full proof of the agreement it contains, as against the parties, their heirs, and

successors by universal or particular title.” As such, according to Appellees, the trial

court’s dismissal of Appellants’ claims relative to the Purchase Agreement was

proper given that the Act of Sale was an authentic act. We find no merit to this

argument.

Our reading of the applicable law, as accurately stated in 1 Peter S. Title,

LOUISIANA REAL ESTATE TRANSACTIONS, § 7:46 (2d ed. 2016), is that provisions of

a Purchase Agreement, as a collateral or contemporaneous agreement, that do not

vary the terms of the Act of Sale can be presented as evidence of obligations between

the parties. Thus, in this case, it was an error of law for the trial court to dismiss

Appellants’ claims relative to the Purchase Agreement under the guise of the Act of

Sale being the “final expression of the parties’ intent.” The trial court must

adjudicate those claims alleged to arise from the collateral or contemporaneous

Purchase Agreement as long as those claims do not vary the terms of the Act of Sale.

Accordingly, we reverse the trial court’s granting of Appellees’ Motion for Partial

Summary Judgment.

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ASSIGNMENT OF ERROR NUMBER TWO:

In their second assignment of error, Appellants assert that the trial court erred

in failing to defer ruling on the Defendants’ Motion for Partial Summary Judgment

until adequate discovery was completed. Our finding in Assignment of Error

Number One pretermits this assignment of error.

CONCLUSION:

GBB Properties Two, LLC and DBR Properties, LLC assert two assignments

of error. We find merit to the first that the trial court erred in granting Ambassador

Infrastructure, LLC, Four Magnolias, LLC, and Ambassador Town Center JV’s

Motion for Partial Summary Judgment. This finding pretermits the second assigned

error. Costs of these proceedings are assessed to Ambassador Infrastructure, LLC,

Four Magnolias, LLC, and Ambassador Town Center JV.

REVERSED AND REMANDED.

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